Citation Nr: 18153042 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-62 113 DATE: November 27, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for low back disorder is reopened. Entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease is denied. For the entire appeal period, a separate 10 percent disability rating, but no higher, for atrial fibrillation, is granted, subject to the laws and regulations governing the payment of monetary benefits. An effective date prior to March 25, 2014, for the award of entitlement to service connection for ischemic heart disease is denied. REMANDED The reopened claim of entitlement to service connection for a low back disorder is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A July 2007 rating decision denied the Veteran’s petition to reopen the issue of entitlement to service connection for a back disorder; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period, and that decision is now final. 2. Evidence received after the July 2007 rating decision is new and relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disorder. 3. Throughout the appeal period, the preponderance of the evidence indicates that the Veteran’s ischemic heart disease has not been manifested by more than one episode of acute congestive heart failure in the past year; or, workload of greater than 3 metabolic equivalent (METs) but not greater than 5 METs resulting in symptoms of dyspnea, fatigue, angina, dizziness or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 4. The Veteran’s atrial fibrillation is due to the service-connected ischemic heart disease and has been manifested by permanent atrial fibrillation, not paroxysmal atrial fibrillation. 5. Ischemic heart disease was diagnosed in 2004. 6. Ischemic heart disease was added to the list of diseases presumed to be related to herbicide exposure, effective August 31, 2010. 7. A petition to reopen the claim of entitlement to service connection for ischemic heart disease was not received prior to March 25, 2015. CONCLUSIONS OF LAW 1. New and material evidence has been presented to reopen the claim of entitlement to service connection for a low back disorder. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for an initial disability rating in excess of 30 percent for ischemic heart disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.104, Diagnostic Code 7005 (2018). 3. The criteria for establishing entitlement to a separate 10 percent rating, but no higher, for atrial fibrillation associated with ischemic heart disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.104, Diagnostic Code 7010 (2018). 4. The criteria for entitlement to an effective date prior to March 25, 2014, for the award of service connection for ischemic heart disease, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1968 to August 1971, to include service in the Republic of Vietnam from February 1969 to September 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a low back disorder. Generally, if a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (2012). “New” evidence is defined as existing evidence not previously submitted to agency decision-makers. “Material” evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2018). The threshold to reopen a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The RO initially denied service connection for a back condition in a March 1972 rating decision on the basis that there was no evidence that the Veteran’s low back disorder was incurred in or aggravated by service. Although the Veteran was notified of this rating decision and his appellate rights in a March 1972 letter, he did not appeal. Additionally, new and material evidence was not received within the appeal period. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2018). In March 2007, the Veteran filed a petition to reopen his claim. In a July 2007 rating decision, the RO again denied service connection. Although the Veteran was notified of this rating decision and his appellate rights in a July 2007 letter, he did not appeal. Additionally, new and material evidence was not received within the appeal period. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2018). In May 2015, the Veteran again filed a petition to reopen his claim of entitlement to service connection for a low back disorder. Evidence received since the July 2007 rating decision includes a December 2016 private medical opinion from Dr. C. Q. indicate that the Veteran’s current low back pain was related service. The evidence constitutes new and material evidence because the evidence relates to a previously unestablished element for service connection, namely, a possible nexus to service. Accordingly, reopening of the claim of service connection for a low back disorder is warranted. 2. Entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § § 3.321(a), 4.1 (2018). Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2018). The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14 (2018); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2018). At the outset, the Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2018) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. The Veteran’s heart disorder is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7005 (2018). Under Diagnostic Code 7005, a 30 percent evaluation is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, where there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray. Id. A 60 percent evaluation is warranted where there has been more than one episode of acute congestive heart failure in the past year; or, a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, where there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. Id. A 100 percent evaluation is warranted for chronic congestive heart failure; or, a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2) (2018). The Veteran was afforded a VA examination in July 2015. The examiner noted a history of atrial fibrillation, which was treated with Xarelto. The Veteran reported a routine of walking for one hour on a flat surface, four times per week with good tolerability and without symptoms of dyspnea or fatigue. He described dyspnea and shortness of breath when climbing stairs too quickly. The examiner opined that the Veteran did not have congestive heart failure. His METs level was estimated to be greater than 7 to 10 METs. The examiner noted that exercise stress testing was not required as part of the Veteran’s current treatment plan and was not without significant risk. The examiner noted constant atrial fibrillation, for which he underwent an electric cardioversion in 2012. The examiner found that his atrial fibrillation was at least as likely as not related to his ischemic heart disease. An echocardiogram revealed cardiac hypertrophy, cardiac dilation, left ventricular ejection fraction greater than 55 percent, normal wall motion, and abnormal wall thickness with concentric remodeling of the left ventricle. Based on the foregoing, the Board finds that the Veteran is not entitled to a disability rating in excess of 30 percent for his ischemic heart disease under 38 C.F.R. § 4.104, Diagnostic Code 7005 (2018). In this regard, the evidence is against finding that the Veteran experienced more than one episode of acute congestive heart failure; that his workload is greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; or that he has left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Therefore, the Board finds that a rating in excess of 30 percent pursuant to Diagnostic Code 7005 is not warranted at any point during the period on appeal. The Board has considered whether a higher or separate rating is warranted under any other potentially applicable diagnostic code. In this regard, the Board notes that the RO severed service connection for atrial fibrillation because it determined that it violated the rule against pyramiding. See 38 C.F.R. § 4.14 (2018). The Board notes that under 38 C.F.R. § 4.14 it is permissible to have separate and distinct manifestations attributable to two different disability ratings, and, in such a case, the veteran should be compensated under different diagnoses. In addition, separate ratings may be assigned for distinct manifestations resulting from the same disability so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, the Veteran’s ischemic heart disease and atrial fibrillation would not violate the rule against pyramiding because the symptomatology and manifestations are not duplicative or overlapping. While Diagnostic Code 7005 addresses the Veteran’s METs level, left ventricular ejection fraction, cardiac hypertrophy, and cardiac dilation, Diagnostic Code 7010 addresses the Veteran’s atrial fibrillation. The rating criteria for supraventricular arrhythmias do not address any of the symptomatology that is addressed in the rating criteria for ischemic heart disease. Under Diagnostic Code 7010, a 10 percent rating is warranted for permanent atrial fibrillation (lone atrial fibrillation), or, one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by electrocardiogram or Holter monitor. 38 C.F.R. § 4.104, Diagnostic Code 7010 (2018). A 30 percent evaluation is warranted for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by electrocardiogram or Holter monitor. Id. Accordingly, the Board finds that the Veteran is entitled to a separate 10 percent rating for his constant atrial fibrillation under Diagnostic Code 7010. However, a rating in excess of 10 percent is not warranted because of the evidence is against finding more than four episodes of paroxysmal atrial fibrillation or other supraventricular tachycardia per year documented by an electrocardiogram or Holter monitor. Thus, a separate rating of 10 percent, but no higher, is warranted for the Veteran’s constant atrial fibrillation. 3. Entitlement to an effective date earlier than March 25, 2014, for the award of service connection for ischemic heart disease. The Veteran contends that he is entitled to an effective date prior to March 25, 2014, for the grant of service connection for ischemic heart disease. Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant’s discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (b)(2)(i) (2018). The effective date, “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a) (2012). A specific claim in the form prescribed by VA must be filed for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Where compensation is awarded pursuant to a liberalizing law, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Moreover, if a claim is reviewed, upon the Veteran’s request, more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for only a period of one year prior to the date of receipt of the request for review. See 38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p). Ischemic heart disease was added as a presumptive disability, effective August 31, 2010. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). The effective date regulations in cases involving Nehmer class members are codified at 38 C.F.R. § 3.816. See also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989). Under that regulation, a Nehmer class member is a veteran who served in the Republic of Vietnam and who has a “covered herbicide disease.” See 38 C.F.R. § 3.816 (b). The Board finds that because service connection for ischemic heart disease was granted based on the Veteran’s presumed exposure to herbicides while serving in the Republic of Vietnam, he is a Nehmer class member as contemplated under 38 C.F.R. § 3.816(b). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a “Nehmer class member” has been granted compensation for a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985, and May 3, 1989; or (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, then the effective date will be the later of (1) the date of receipt of the claim giving rise to the original denial; or (2) the date the disability arose. 38 C.F.R. § 3.816(c)(1), (2). If the requirements of 38 C.F.R. § 3.816(c)(1) – (2) are not met, then the effective date of the award shall be determined in accordance with the general effective date regulations under §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(3), (4). 4. The Board finds that an effective date prior to March 25, 2014, is not warranted. The Board notes that the RO denied service connection for chest pains in a February 1972 rating decision. Although the Veteran was notified of this rating decision and his appellate rights in a March 1972 letter, he did not appeal. Additionally, new and material evidence was not received within the appeal period. Therefore, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2018). A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. 38 C.F.R. § 3.816 (c)(1). While service connection for a heart disorder, specifically chest pains, was previously denied, there is no evidence that the RO issued a rating decision regarding compensation for a heart disorder between September 25, 1985, and May 3, 1989. There is also no evidence that a claim for a heart disorder was pending before VA on May 3, 1989, or was received by VA between May 3, 1989 and August 31, 2010. Accordingly, his initial claim and denial is outside the scope of 38 C.F.R. § 3.816(c)(1) – (2). Therefore, the effective date for the grant of service connection for ischemic heart disease must be assigned pursuant to 38 C.F.R. § 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4) (2018). In this case, the RO granted service connection for ischemic heart disease based on the liberalizing law, which added ischemic heart disease to the list of diseases entitled to presumptive service connection. The RO assigned an effective date of March 25, 2014, one year prior to the date of the Veteran’s petition to reopen. Pursuant to 38 C.F.R. § 3.114, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). The Veteran’s claim to reopen was received on March 25, 2015, which is more than a year after the August 31, 2010 effective date of the liberalizing law. The Board notes that ischemic heart disease was diagnosed in 2004. Therefore, he met the criteria for presumptive service connection under the liberalizing law on the effective date of the liberalizing law and continuously met the criteria since that time. The earliest effective date allowed under the law is March 25, 2014, one year prior to the date of his claim to reopen. The Veteran has not asserted, and the claims file does not reflect, that he submitted a formal or informal petition to reopen entitlement to service connection for ischemic heart disease prior to the one received by VA on March 25, 2015. As noted above, the Veteran is presumed to have been exposed to herbicides and he received a diagnosis of ischemic heart disease in 2004. In this case, entitlement to service connection arose in 2004 and his petition to reopen was received on March 25, 2015. Accordingly, the Veteran is not entitled to an effective date prior to March 25, 2014 pursuant to 38 C.F.R. § 3.114. As no earlier effective date is permitted by law, the benefit sought on appeal must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a low back disorder is remanded. The Veteran asserts that service connection is warranted for a low back disorder. His service treatment records do not contain any complaints or treatment related to a low back disorder. His June 1971 report of medical examination at separation revealed a normal clinical evaluation of the spine. On the associated report of medical history, the Veteran denied back trouble. In January 1972, the Veteran underwent a VA examination during which he complained of low back pain. A physical examination revealed a mild muscle spasm of the paravertebral lumbosacral muscles. He was able to forward bend to 90 degrees. The diagnosis was chronic low back strain, mild. The Veteran submitted a private medical opinion from Dr. C. M. It was noted that the Veteran presented with low back pain with para-lumbar spine muscle stiffness, numbness, and tingling. The diagnosis was chronic low back pain and chronic myositis of the para-lumbar spine muscles. Dr. C. M. opined that the Veteran’s musculoskeletal disorders were more probable than not secondary to his military service. In light of the above, the Board finds that a VA examination and opinion are warranted. Specifically, the Veteran was diagnosed with a low back disorder shortly after service, has a current diagnosis of a low back disorder, and a private medical opinion related his disorder to service. Unfortunately, the private medical opinion is inadequate for adjudication purposes as Dr. C. M. did not provide any rationale in support of the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from sound reasoning). Accordingly, the Board finds that the low threshold necessary to provide an examination has been established in this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. 5103A(d)(2), 38 C.F.R. 3.159(c)(4)(i) (2018). 2. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the claim remanded herein. As such, consideration of the Veteran’s TDIU claim must be deferred pending the outcome of the service connection claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding, pertinent VA and private medical records. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination by a clinician with sufficient expertise, to determine the nature and etiology of his low back disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner must identify all back disorders present during the appeal period. Following the examination and a review of the relevant records and lay statements, the examiner must opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any low back disorder was incurred in, was caused by, or is otherwise related to the Veteran’s military service. In so opining, the examiner must consider and discuss the June 1971 separation examination showing a normal spine, the June 1971 report of medical history showing that the Veteran denied back trouble, the May 1972 VA examination showing a diagnosis of a low back disorder, and the private medical opinion from C. M. relating the Veteran’s musculoskeletal disorders to service. The rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If an opinion cannot be provided without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, examiner should identify the additional information that is needed. 3. Finally, after conducting any other development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel