Citation Nr: 1806674 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-25 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date earlier than October 5, 2014 for the grant of service connection for coronary artery disease (CAD) status post myocardial infarction. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for diabetes mellitus, type II. 4. Entitlement to a higher initial rating for CAD status post myocardial infarction, currently evaluated as 60 percent disabling from February 1, 2015. 5. Entitlement to a higher rating for posttraumatic stress disorder (PTSD), currently evaluated as 70 percent disabling. 6. Entitlement to a compensable rating for hearing loss. 7. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to October 5, 2014. 8. Entitlement to special monthly compensation (SMC) at the housebound rate earlier than October 5, 2014 and after February 1, 2015. REPRESENTATION Appellant represented by: Sherri A. Stone, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Drucker, Counsel INTRODUCTION The Veteran had active military service from January 1966 to November 1968. This case initially came to the Board of Veterans' Appeals (Board) on appeal from July and August 2012, May 2014, and May 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The July 2012 rating decision confirmed and continued a previously assigned 70 percent rating for the Veteran's service-connected PTSD and denied service connection for ischemic heart disease and diabetes mellitus, type II. The August 2012 rating decision denied service connection for hypertension. The May 2014 rating decision denied entitlement to a compensable rating for hearing loss and a TDIU. The May 2015 rating decision granted service connection for a myocardial infarction that was assigned a 100 percent rating from October 5, 2014 and a 10 percent rating from February 1, 2015. That decision also granted SMC at the housebound rate from October 5, 2014 to February 1, 2015. The August 2015 rating decision granted a 60 percent rating for the Veteran's CAD status post myocardial infarction and a TDIU, both from February 1, 2015. In July 2016, the Board remanded the Veteran's case to the Agency of Original Jurisdiction (AOJ), in part, to comply with his request to testify during a hearing before the Board. In May 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge that was conducted by videoconference. A transcript of the hearing is of record. The issue of entitlement to payment or reimbursement for emergency treatment for service and non-service connected conditions at non-VA facilities has been raised by the record during the Veteran's May 2017 Board hearing (see 5/5/17 Hearing Testimony, pages 8-9), but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action, to include, if appropriate, providing the Veteran with the requisite claim form to file a claim for these benefits. 38 C.F.R. § 19.9(b) (2017). Cf. 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective Mar. 24, 2015) (requiring that claims and notices of disagreement be filed on standard forms). The issues of entitlement to service connection for hypertension and diabetes mellitus, type 2, increased ratings for a heart disability and PTSD, SMC, and a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. On January 31, 2012, and more than one year following his discharge from active service, the Veteran filed his original claim for service connection for ischemic heart disease that was denied in the July 2012 rating decision. The Veteran perfected an appeal of this determination. 2. After additional relevant medical evidence was submitted within the appeal period, that included diagnoses of myocardial infarction and CAD, the Veteran's claim was readjudicated and granted in the May 2015 rating decision that effectuated the service connection grant from October 5, 2014. CONCLUSION OF LAW The criteria for an effective date of January 31, 2012, but no earlier, for the grant of service connection for CAD status post myocardial infarction have been met. 38 U.S.C. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2017), 3.157 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal as to the effective date for the grant of service connection for a heart disability arises from disagreement with the effective date following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional Veterans Claims Assistance Act (VCAA) notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No such error has been alleged here. As such, the Board will proceed with consideration of the Veteran's appeal. Contentions The Veteran contends that an effective date earlier than October 5, 2014 is warranted for service connection for CAD with myocardial infarction. He has not offered a more appropriate effective date. Legal Criteria Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order 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) (2017). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157 (2017). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the appellant's claim was received by VA prior to that date, the former regulations apply and are applicable to his case. Previously, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See 38 C.F.R. § 3.1 (p) (2017); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran does not contend that he filed a claim within one year of his separation from service, and the evidence does not show otherwise. The record shows that, on January 31, 2012, the Veteran submitted a claim for service connection for ischemic heart disease. See 1/31/12 VA 21-4138 Statement in Support of Claim. At that time, the Veteran submitted a January 2012 report from Dr. P.J.Y., a diagnostic consultant, reflecting clinical findings "strongly suggestive of ischemic heart disease." See 1/31/12 Medical Treatment Record Non Government Facility. A February 2012 VA examiner concluded that the Veteran did not have ischemic heart disease. Medical evidence was added to the record indicating that left ventricular hypertrophy was reported by a private cardiologist in a March 2012 report. See 6/25/12 Medical Treatment Record Non Government Facility. April 2012 private hospital records describe the Veteran's evaluation for chest pain and that a myocardial infarction was ruled out. See 6/11/12 Medical Treatment Record Non Government Facility. The Veteran perfected an appeal of the July 2012 rating decision that denied his claim for service connection for ischemic heart disease. Added to the record were VA medical records showing that the Veteran had a myocardial infarction on October 5, 2014. See 5/11/15 VAMC Other Output/Reports, pps. 90, 116. The May 2015 rating decision granted service connection for a myocardial infarction, effective October 5, 2014. A later-dated May 2015 VA examination report includes a diagnosis of CAD. The August 2015 rating decision recharacterized the Veteran's heart disability as CAD status post myocardial infarction. Following its review of the record, the Board finds that January 31, 2012, but no earlier, is the correct effective date for the award of service connection for the Veteran's CAD status post myocardial infarction, because that is the date of receipt of his initial claim for service connection for his heart disability. There is no indication between the Veteran's date of separation from active duty service on November 25, 1968, and the date of receipt of his claim for ischemic heart disease, that he intended to file a claim for service connection. Current regulations hold that, to establish service connection, evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran was diagnosed with a myocardial infarction and CAD during the course of his appeal. Therefore, the current disability requirement is satisfied when a claimant "has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim," McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), or "when the record contains a recent diagnosis of disability prior to ... filing a claim for benefits based on that disability," Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). Considering the totality of the information above, at the very least, the medical evidence was in equipoise at the time the Veteran filed his claim for service connection for ischemic heart disease. However, CAD is unequivocally a manifestation of ischemic heart disease, according to 38 U.S.C. § 1116 (2012); 38 C.F.R. § 3.309(e) (2017). The Veteran was diagnosed with CAD during the pendency of his claim. It is reasonable to conclude that the Veteran has had his heart disability throughout the appeal period. Although there is no explanation for the diagnosis date, the May 2015 VA examiner did report the diagnosis of CAD qualifying within the generally accepted medical definition of ischemic heart disease. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for CAD status post myocardial infarction should be effective as of January 31, 2012. ORDER An effective date of January 31, 2012, but not earlier, for the grant of service connection for CAD status post myocardial infarction is granted. REMAND A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). In July 2016, the Board directed that the AOJ issue a supplemental statement of the case (SSOC) as to all evidence received since issuance of the August 2013 statement of the case (regarding the claims for an increased rating for PTSD and service connection for hypertension and diabetes mellitus, type 2). The SSOC was not issued as directed by the Board. This was contrary to the prior remand instructions. See Stegall v. West, 11 Vet. App. at 268. Service Connection for Hypertension Service treatment records show that, on a Report of Medical History completed in January 1966 when the Veteran was examined for entry into active service, an examiner noted that the Veteran reported having a prescription for "High BP" and vitamins, and still took the vitamins. See 1/23/07 STR-Medical, pages 5-6. The enlistment examination report indicates that there were no findings of high blood pressure. Id. at 3-4. Hence, the presumption of soundness attaches. 38 U.S.C. § 1111 (2012). Subsequent service treatment records do not mention high blood pressure. In January 2012, Dr. P.J.Y., a chiropractor, diagnosed the Veteran with hypertension and opined that it was more likely than not that the Veteran's hypertension was "directly and causally related to type 2 diabetes and ischemic heart disease" and "therefore more likely than not that same is directly and causally related to his military service". Dr. P.J.Y., provided no rationale for his opinion. Subsequent VA and non-VA medical records indicate that the Veteran has hypertension. See e.g., 6/11/12 Medical Treatment Record Non Government Facility. As Dr. P.J.Y.'s January 2012 report did not provide a rationale for the causation opinion or provide an aggravation opinion, the Board finds it insufficient to decide this issue. Additionally, the Board finds the 2012 report is too vague. As such, the Veteran should be afforded a VA examination by a physician, to determine the etiology of his hypertension disability including if his service-connected heart disability caused or aggravated the hypertension disability. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159 (2017). Service Connection for Diabetes Mellitus Service connection is warranted if the Veteran is diagnosed with diabetes mellitus, type II. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). However, there appears to be some confusion as to whether he has diabetes mellitus. In January 2012, Dr. P.J.Y. reported that the Veteran had a random blood glucose reading that day of 139 mg/dl that was a diabetic reading. The test was to be followed up with a confirmatory Hemoglobin A1C test. Diabetes Type 2 was diagnosed. A February 2012 VA examiner concluded that the Veteran did not meet the criteria for a diagnosis of diabetes. The examiner remarked that the Veteran had "a RANDOM, no fasting of 136 mg/dl with no AlC or past reading consistent with diabetes." See 2/18/12 VA Examination, page 1, 6. In March 2012, Dr. P.J.Y. advised the Veteran that a lab report confirmed mild type 2 diabetes. See 4/9/12 Medical Treatment Record Non Government Facility. In an April 2012 addendum, Dr. P.J.Y. reported that, since his initial report, "a Hemoglobin AIC has been performed which does in fact demonstrate active type 2 diabetes which is more likely than not directly and causally related to military service as discussed in the initial report. The Hemoglobin A1C value was reported by the lab as 6.3 which confirms low grade diabetes" and a copy of the report was on file in Dr. P.J.Y.'s office. See 5/3/12 Medical Treatment Record Non Government Facility. Efforts should be made to obtain the relevant private laboratory report of the Veteran's 2012 Hemoglobin A1C test. Diabetes mellitus is listed among the Veteran's principal diagnoses in a July 2015 private hospital discharge summary. See 10/1/15 Medical Treatment Record Non Government Facility, page 6. However, diabetes mellitus is not included in the Veteran's August 2016 VA outpatient record medical assessment. See 2/11/17 CAPRI, page 41. Further clarification is needed as to whether the Veteran currently has diabetes mellitus, type II. Increased Ratings for Heart Disability and PTSD In January 2012, a private psychologist reported that the Veteran had homicidal tendencies and was unable to maintain a normal standard of living, and assigned a GAF score of 39. See 4/9/12 Medical Treatment Record Non Government Facility, pages 1, 4. A February 2012 VA PTSD examiner considered the Veteran less impaired. The Veteran last underwent VA examination of his PTSD in February 2012 and of his heart disability in May 2015. During his May 2017 Board hearing, he indicated that his disabilities had worsened, according to his attorney's July 2017 statement. See 7/10/17 Third Party Correspondence, page 2. June 2015 private hospital records indicate that the Veteran was having angina that may have been exacerbated somewhat by heart failure and his left ventricular dysfunction. See 10/7/15 Medical Treatment Record Non Government Facility, page 49. Given the evidence of a change in the conditions, he is entitled to new examinations. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). During his Board hearing, the Veteran testified to having kidney problems due to hypertension, and peripheral artery disease. See 5/5/17 Hearing Transcript, pages 3, 5. In March 2014, the Veteran was found to have chronic kidney disease secondary to chronic hypertension. See 3/21/14 Legacy Content Manager Documents (LCMD), page 1. A March 2016 VA renal clinic physician note, shows he was assessed with chronic kidney disease likely secondary to recent AKI on top of atherosclerotic renovascular disease with unilateral shrunken kidney. See 2/11/17 CAPRI, pps. 12, 15. It is unclear if these disabilities are due to service-connected heart disability. Records In March 2015, the Veteran requested that VA obtain records of his treatment at Spartanburg Outpatient Clinic since 2005. See 3/17/15 VA 21-4142 Authorization for Release for Information. He signed but did not date his request, the records were not obtained. See 3/19/15 VA 21-4142 Authorization for Release of Information. Efforts should be made to obtain the private treatment records identified by the Veteran. Recent medical records regarding the Veteran's VA treatment since December 2016 should be obtained. SMC and a TDIU The Board will defer consideration of the Veteran's SMC and TDIU claims, pending completion of the development requested below, to include the increased rating issues. Hearing Loss The May 2014 rating decision denied a compensable evaluation for hearing loss. The Veteran submitted a notice of disagreement as to this decision in May and September 2014. See 5/27/14 NOD; 9/9/14 Third Party Correspondence. The Board is required to remand this issue so that a statement of the case (SOC) can be provided. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Issue a SOC regarding the matter of entitlement to a compensable rating for hearing loss. Do not certify or return this issue to the Board, unless the Veteran submits a timely substantive appeal. 2. Obtain a copy of the 2012 Hemoglobin A1C test that confirmed the Veteran's low grade diabetes referenced in Dr. P.J.Y.'s April 19, 2012 Addendum, and records of the Veteran's treatment at the Spartanburg Outpatient Clinic since 2005, after obtaining the requisite authorization from him to obtain these private treatment records. Let the Veteran know that he submitted the information himself if it is in his possession. 3. Obtain all VA medical records regarding the Veteran's treatment since December 2016. For #2 and #3, if the requested records cannot be obtained, inform the appellant what records could not be obtained, the efforts made to obtain the records, and what further actions will be taken on his claims. 4. After completing the development requested above (in #s 1-3), refer the Veteran's claims file to a VA endocrinologist for an opinion as whether the Veteran currently has diabetes mellitus, type II. A clinical examination should be scheduled only if deemed necessary by the physician. The examiner is requested to review the Veteran's medical records and address the following: a. Does the Veteran currently have diabetes mellitus, type II? b. If so, is any hypertension or peripheral artery disability at least as likely as not aggravated by the diabetes mellitus disability? If aggravated, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline of hypertension or periperhal artery disability prior to aggravation? c. Comprehensive reasons should be provided for your opinion. In rendering an opinion, the examiner is particularly requested to address the opinions rendered by the February 2012 VA examiner (to the effect that the Veteran had a random blood glucose reading with no AlC or past reading consistent with diabetes) and Dr. P.Y. in April 2012 (to the effect an Hemoglobin A1C value was reported by the lab as 6.3 that confirmed low grade diabetes). 5. Schedule the Veteran for VA examination by a physician to determine whether any current hypertension disability is related to a disease or injury in service. The claims folder should be reviewed by the examiner to become familiar with the pertinent medical history of the hypertension disability. a. The examiner should opine whether it is at least as likely as not that any hypertension disability (present since 2012) is the result of a disease or injury in active service, or had its onset in such service (including the notation in the January 1966 medical history), or is proximately due to service-connected CAD status post myocardial infarction? b. If so, is any peripheral artery disease or kidney disease proximately due to the hypertension disability? c. The examiner should provide a comprehensive rationale for each opinion given. d. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. e. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. f. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 6. Schedule the Veteran for appropriate VA heart disability and psychiatric examinations (the heart disability examination should be performed by a cardiologist, if available) to determine the current severity and all manifestations of the Veteran's service-connected CAD status post myocardial infarction and PTSD. The cardiologist-examiner is requested to provide an opinion as to whether the Veteran has peripheral artery disease, kidney disease, or hypertension, proximately due to the service-connected CAD status post myocardial infarction disability? 7. If any benefit on appeal remains denied, then the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if so in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs