Citation Nr: 18153865 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-51 711 DATE: November 28, 2018 ORDER An initial evaluation in excess of 30 percent for atrial fibrillation is denied. Service connection for headaches is denied. Service connection for an acquired psychiatric disability is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for multiple sclerosis is remanded. FINDINGS OF FACT 1. For the entire initial rating period, the Veteran has not been shown to have more than one episode of congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, anginae, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 2. The Veteran has not been shown to have a current headache disorder at any time since separation from active service in April 1991. 3. The Veteran has not been shown to have a current acquired psychiatric disability at any time since separation from active service in April 1991. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 30 percent for atrial fibrillation have not been met. 38 U.S.C. §§ 1155, 5110 (b)(2) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.41, 4.104, Diagnostic Codes 7011 (2018). 2. The criteria for entitlement to service connection for headaches have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from November 1982 to March 1988 and from February 1991 to April 1991. The Board has recharacterized the Veteran’s claim for depression more broadly to an acquired psychiatric disability in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Neither the Veteran nor his representative has 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 liberally 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). 1. Entitlement to an initial evaluation in excess of 30 percent for atrial fibrillation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s disability should be viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection on May 27, 2013. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran filed his initial claim requesting service connection for atrial fibrillation in May 2014. In the March 2015 VA rating decision, service connection for atrial fibrillation was granted. The Veteran was assigned a 30 percent disability rating for the entire appeal period, to include one year prior, effective from May 27, 2013. 38 C.F.R. § 4.104, Diagnostic Code 7011. As such, the Board considers whether an initial rating in excess of 30 percent is warranted at any time since May 27, 2013. Under Diagnostic Code 7011 for ventricular arrhythmias (sustained), a 30 percent evaluation is assigned when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. 38 C.F.R. § 4.104. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent evaluation, the maximum available, is warranted for chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Review of the evidentiary record since May 27, 2013 documents the following symptomatology of the service-connected atrial fibrillation. The Veteran’s VA treatment records reveal he is treated for atrial fibrillation and was hospitalized in 2007 for congestive heart failure. The Veteran was afforded a VA examination in March 2015. The examiner documented the Veteran did not have chronic congestive heart failure and did not have any episodes of congestive heart failure within a year of the examination. The Veteran’s chest x-ray was found to be normal. The examiner noted the Veteran had symptoms resulting in his METs levels being greater than 5 but not greater than 7 resulting in dyspnea. During a December 2016 VA examination, the Veteran reported having difficulty walking around the factory and going up stairs while working. the examiner noted the Veteran had been hospitalized for congestive heart failure in 2007 with no episodes of acute congestive heart failure in the past year. Upon clinical evaluation, the Veteran demonstrated a normal heart rhythm and MET levels were greater than 5 but not greater than 7 resulting in dyspnea. A review of the Veteran’s records shows he has atrial fibrillation manifested by METs levels being greater than 5 but not greater 7 resulting in dyspnea. However, he has not been shown to have more than one episode of acute congestive heart failure in the past year or at any point during the appeal period. Additionally, during the appeal period, he has not been shown to have METs results other than those noted during his VA examinations. Thus, the symptomatology of the Veteran’s atrial fibrillation is most accurately contemplated by the criteria for a 30 percent evaluation, and an initial rating in excess of the currently-assigned 30 percent rating is not warranted. See 38 C.F.R. § 4.104, Diagnostic Code 7011. The Board has considered the Veteran’s reported history of symptomatology related to the service-connected atrial fibrillation pursuant to seeking VA compensation benefits and at VA treatment sessions. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through one’s senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, his statements do not rise to a level of competency to identify the specific level of impairment according to the appropriate diagnostic codes and relevant rating criteria. In this case, such competent evidence concerning the nature and extent of the Veteran’s disability has been provided in the medical evidence of record. As such, the Board finds these records to be more probative than the Veteran’s subjective reports of worsened symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board has also considered the possibility of staged ratings and finds that the proper rating for atrial fibrillation has been in effect for the entire appeal period. Accordingly, additional staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the provisions of 38 C.F.R. § 3.303(b) apply only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a)). Service connection may be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection can also be established through application of statutory presumptions, including for “chronic diseases,” such as other organic diseases of the nervous system which may include headaches, when manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Headaches The Veteran filed a service connection claim for headaches in May 2014. Review of the claims file reveals that at a July 2015 VA treatment session, the Veteran presented with head pressure accompanied with other nasal symptoms. Nevertheless, review of post-service treatment records does not reveal the Veteran has been treated for headache symptoms or diagnosed with a headache disorder. In fact, the Veteran has been silent throughout the course of the appeal regarding current symptomatology or diagnoses of a current disorder for this claim on appeal. The Board finds that the record does not contain a current disability to establish that the first criterion to establish service connection on a direct basis has been met. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (“Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability,” and held that “[i]n the absence of proof of a present disability[,] there can be no valid claim.”); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The most probative evidence of record reflects the Veteran has not been shown to have a current headache disorder or acquired psychiatric disability at any time since separation from service in April 1991. The Board also finds that the preponderance of the evidence is against finding that headaches manifested to a compensable degree within one year of separation from active duty or was chronic during service. The Veteran’s service treatment records are negative for any complaints, treatments, or diagnosis of headaches. Indeed, the in-service examinations indicate the Veteran’s systems were normal and the Veteran did not report any symptoms related to headaches. See February 1991 and September 1988 Medical Examinations and Reports of Medical History. Accordingly, service connection for headaches on a presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim on direct and presumptive bases, the doctrine is not for application. Gilbert, 1 Vet. App. at 53. 3. Acquired psychiatric disability The Veteran filed a service connection claim for depression in May 2014. Review of post-service treatment records does not reveal the Veteran has been treated or diagnosed for any psychiatric symptoms. In fact, several VA treatment records indicate the Veteran denied symptoms of depression on numerous occasions, and VA treatment records indicate the Veteran’s mental alertness was intact. See e.g. September 2014 and March 2016 VA treatment records. Moreover, the Veteran has been silent throughout the course of the appeal regarding current symptomatology or diagnosis of a current disorder for this claim on appeal. The Board finds that the record does not contain a current disability to establish that the first criterion to establish service connection on a direct basis has been met. See Brammer, 3 Vet. App. at 225; Rabideau, 2 Vet. App. at 143-44. The most probative evidence of record reflects the Veteran has not been shown to have a current acquired psychiatric disability at any time since separation from service in April 1991. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim on a direct basis, the doctrine is not for application. Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea 2. Entitlement to service connection for multiple sclerosis Review of the claims file reveals the Veteran has been diagnosed and treated for obstructive sleep apnea and multiple sclerosis during the appeal period at VA treatment sessions. An August 2014 VA treatment record also notes the Veteran’s history of obstructive sleep apnea syndrome dates back to 2002 and may be secondary to his service-connected atrial fibrillation. In light of such evidence, the Board finds that additional development is needed to determine the etiology of sleep apnea and multiple sclerosis. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination with an appropriate clinician for his sleep apnea. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep apnea began during active service or is related to an incident of service. (b.) Whether it is at least as likely as not that the Veteran’s sleep apnea was proximately due to or the result of his service-connected atrial fibrillation. (c.) Whether it is at least as likely as not that the Veteran’s sleep apnea was aggravated beyond its natural progression by his service-connected atrial fibrillation. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his multiple sclerosis. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s multiple sclerosis began during active service or is related to an incident of service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, review the examination reports and medical opinions to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the RO must implement corrective procedures. (Continued on the next page)   4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.M. Walker, Associate Counsel