Citation Nr: 18123737 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 17-64 452 DATE: August 2, 2018 ORDER Entitlement to an effective date earlier than July 30, 2013 for the assignment of an increased, 30 percent, rating for atherosclerotic heart disease and coronary artery disease is denied. Entitlement to an effective date of August 1, 2007, but no earlier, is granted for the award of service connection for peripheral arterial disease of the left lower extremity. Entitlement to an effective date of August 1, 2007, but no earlier, is granted for the award of service connection for peripheral arterial disease of the right lower extremity. REMANDED Entitlement to a rating in excess of 10 percent for adjustment disorder with depressed mood prior to July 30, 2013, and in excess of 30 percent thereafter, is remanded. FINDINGS OF FACT 1. The Veteran did not appeal a July 9, 2013 Board decision that denied an initial rating in excess of 10 percent for atherosclerotic heart disease and coronary artery disease. 2. The July 30, 2013 outpatient VA examination report served as an informal claim for an increased rating for service-connected atherosclerotic heart disease and coronary artery disease; the record includes no communication from the Veteran received between the July 9, 2013 prior final Board decision and the July 30, 2013 VA examination that constitutes either a formal or informal claim for an increased rating for service-connected heart disease. 3. Competent and credible lay statements made by the Veteran since August 1, 2007 were sufficient to establish the diagnosis of peripheral arterial disease of the left lower extremity later confirmed by a VA medical professional. 4. Competent and credible lay statements made by the Veteran since August 1, 2007 were sufficient to establish the diagnosis of peripheral arterial disease of the right lower extremity later confirmed by a VA medical professional. CONCLUSIONS OF LAW 1. The July 9, 2013 Board decision denying entitlement to an initial rating in excess of 10 percent for atherosclerotic heart disease and coronary artery disease is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. The criteria for entitlement to an effective date earlier than July 30, 2013 for the assignment of an increased, 30 percent, rating for atherosclerotic heart disease and coronary artery disease have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017); 38 C.F.R. § 3.157 (2013). 3. The criteria for an effective date of August 1, 2007, but no earlier, for the award of service connection for peripheral arterial disease of the left lower extremity have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 4. The criteria for an effective date of August 1, 2007, but no earlier, for the award of service connection for peripheral arterial disease of the right lower extremity have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Effective Dates In the August 2013 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for peripheral arterial disease and assigned an initial 40 percent rating for each lower extremity. The decision also increased the disability rating assigned for atherosclerotic heart disease with coronary artery disease to 30 percent. The effective date for these actions was July 30, 2013. In addition, the Veteran’s combined evaluation for compensation increased to 100 percent, including the bilateral factor, effective July 30, 2013. The Veteran seeks earlier effective dates for the grant of service connection and assignment of a higher disability rating. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final disallowance, or a claim for increase “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the “[d]ate of receipt of claim or date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400. The “date of the claim” means the date of the application based upon which benefits are awarded, not the original claim for service connection. Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C. § 5110 also refer to the date an application is received. While the term “application” is not defined in the statute, the regulations use the terms “claim” and “application” interchangeably, and they are 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), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the underlying claims and appeals in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. 1. Entitlement to an effective date earlier than July 30, 2013 for the assignment of an increased, 30 percent, rating for atherosclerotic heart disease and coronary artery disease The Veteran’s original claim for service connection for heart disease, claimed as “arteriosclerosis (heart),” was received on February 23, 2009 with his substantive appeal for other issues no longer on appeal. In a December 2009 rating decision, the AOJ granted service connection for atherosclerotic heart disease and mild coronary artery disease and assigned an initial 10 percent rating, effective February 23, 2009, under 38 C.F.R. § 4.104, Diagnostic Code 7005. He disagreed with the initial assigned rating and perfected a timely appeal. The Board remanded the issue in March 2013 to obtain outstanding VA treatment records. The AOJ obtained the outstanding records, readjudicated the claim in an April 2013 supplemental statement of the case (SSOC), and returned the appeal to the Board. On July 9, 2013, the Board denied the claim of entitlement to an initial rating in excess of 10 percent atherosclerotic heart disease and coronary artery disease. The Board found that since receipt of the claim for service connection, the Veteran’s atherosclerotic heart disease and coronary heart disease had been manifested by metabolic equivalents (METs) of greater than 7, which was consistent with the 10 percent rating assigned under Diagnostic Code 7005. The Veteran did not appeal the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) and it became final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. On July 15, 2013, the AOJ ordered VA cardiology and general medical examinations, among others, to evaluate a pending claim of service connection for peripheral vascular disorder and other disabilities. On July 30, 2013, the Veteran presented for the scheduled VA examinations. Examination findings included interview-based METs testing, showing a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea and fatigue. In addition, chest x-ray examination revealed cardiac hypertrophy. Based on reported examination findings pertinent to the Veteran’s service-connected heart disease, the AOJ increased the assigned rating for atherosclerotic heart disease and mild coronary artery disease to 30 percent, effective July 30, 2013, which is the date of the VA examination. At the time of the July 30, 2013 VA examination, Federal regulation allowed a report of examination or hospitalization by VA or uniformed services to serve as an informal claim for increase where a formal claim for service connection had already been allowed. 38 C.F.R. § 3.157(b) (2013). The date of outpatient examination will be accepted as the date of receipt of a claim. Id. § 3.157(b)(1). Although this regulation was removed from the Code of Federal Regulations on September 25, 2014, it remained in effect at that time of the July 30, 2013 VA examination. See 79 Fed. Reg. 57660, 57696, Sept. 25, 2014. In this case, a factually ascertainable increase in severity of the Veteran’s service-connected heart disease was documented on VA examination on July 30, 2013; that examination report also served as an informal claim for an increased rating because service connection had already been established. The assignment of an effective date earlier than July 30, 2013 for the increased, 30 percent rating for heart disease must be denied because neither a claim for an increased rating nor a factually ascertainable increase in severity was shown between the final Board decision dated July 9, 2013 and the July 30, 2013 VA examination report. For the reasons discussed above, there is no legal basis for an effective date earlier than July 30, 2013 for the assignment of a 30 percent rating for atherosclerotic heart disease with coronary artery disease. The claim for a higher rating earlier than July 30, 2013 must be denied as a matter of law. Cf. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (denying a claim as a matter of law where the law, and not the evidence, is dispositive). 2. Entitlement to an effective date earlier than July 30, 2013 for the grant of service connection for peripheral arterial disease of the left lower extremity 3. Entitlement to an effective date earlier than July 30, 2013 for the grant of service connection for peripheral arterial disease of the right lower extremity Having reviewed the medical and lay evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that an effective of August 1, 2007 is warranted for the award of service connection for peripheral arterial disease of the left and right lower extremities. In correspondence received by VA on August 1, 2007, the Veteran expressed his intent to apply for VA compensation benefits for a “circulation…problem, particularly my right leg.” Based on his description of his leg problems, right worse than left, the AOJ construed his correspondence as an informal claim of entitlement to service connection for peripheral vascular disease. In a November 2007 rating decision, the AOJ denied the claim because the Veteran did not have a diagnosis of peripheral vascular disease of either lower extremity. The Veteran timely appealed the decision and the Board remanded the appeal in March 2013 and July 2013 for additional development. The Board observes that although the Veteran was not diagnosed with peripheral arterial disease of the lower extremities until the July 30, 2013 VA examination, including an August 6, 2013 bilateral lower extremity arterial duplex study, the medical evidence of record documents the Veteran’s lay reports of peripheral arterial disease symptomatology and clinical features of peripheral arterial disease since receipt of his claim. See generally, David G. Neschis, MD and Michael A. Golden, MD, Up To Date Online, “Clinical Features and Diagnosis of Lower Extremity Peripheral Artery Disease” (last updated June 11, 2018). Notably, consistent with his August 2007 statement describing “circulation” problems in his legs and the eventual diagnosis, VA and private treatment records and VA examination reports note his complaints of intermittent pain and swelling in his lower extremities and exercise intolerance due to cramps in his calves with activity. The records further document suspected claudication and bilateral trophic changes including peripheral hair loss and decreased pedal pulses. The impression of an August 2011 bilateral lower extremity arterial duplex scan was bilateral atherosclerotic plaques, not causing significant stenosis by velocity criteria. Importantly, the medical evidence of record also documents risk factors for the development of peripheral arterial disease, including type II diabetes mellitus diagnosed in 2002 and coronary artery disease diagnosed in 2007. Each of these disabilities is service-connected. Considering the July 30, 2013 VA examination and accompanying diagnostic studies, the examiner indicated the Veteran had the following signs and symptoms pertinent to his claimed peripheral vascular disease: claudication bilaterally on walking that resolves with rest, which the Veteran had reported having for five to six years (since 2007 or 2008), absence of lower extremity hair, and dystrophic nails. Findings reported on bilateral lower extremity arterial duplex testing included “no atherosclerotic plaques or stenosis” and “arterial wall calcifications…present bilaterally.” The Board notes that the duplex testing findings appear to be internally inconsistent. In this regard, the examiner also indicated that ankle/brachial index testing could not be calculated due to calcified walls of the runoff arteries. In any event, the VA examiner opined based on a review of the claims file, physical examination, and diagnostic testing that the Veteran had peripheral arterial disease of each lower extremity secondary to service-connected diabetes mellitus, explaining that peripheral artery disease is a very well-known macrovascular complication of type II diabetes mellitus. An August 2013 rating decision granted service connection for peripheral arterial disease (claimed as peripheral vascular disease) and assigned a 40 percent rating for each lower extremity, effective July 30, 2013, which is the date peripheral arterial disease was first diagnosed. Subsequently, in September 2013, a VA medical officer reviewed the evidence of record and provided opinions regarding conflicting medical evidence pertinent to other claims. The reviewing medical officer concluded there was “clear and unmistakable clinical evidence to support diagnoses of long-standing diabetes mellitus, type II, with secondary complications to include…cardiovascular disease with peripheral arterial disease, atherosclerotic vessels (progressive and intermittent claudication),” and other complications. Based on the foregoing facts, the Board finds the evidence is at least in equipoise as to whether the Veteran had a diagnosed peripheral arterial disease of the lower extremities at the time VA received his claim on August 1, 2007. Therefore, resolving reasonable doubt in the Veteran’s favor, the Board concludes that an effective date of August 1, 2007 is warranted for the award of service connection for peripheral arterial disease of each lower extremity. 38 U.S.C. § 5017(b); 38 C.F.R. § 3.400. In this regard, the Board acknowledges the Veteran is competent to describe some symptoms of peripheral arterial disease such as leg cramps with activity. In addition, the Board finds his reports of peripheral arterial disease symptoms and the onset of those symptoms credible because they are generally consistent and were often made in the context of seeking medical treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care). Finally, the Board emphasizes that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when…lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In summary, the Board finds the Veteran’s competent and credible lay statements as to symptoms and onset of peripheral arterial disease are sufficient to establish a diagnosis of peripheral arterial disease since receipt of his claim. In turn, because the Board finds a factually ascertainable peripheral arterial disease disability of each lower extremity existed since August 1, 2007, the same date VA received the Veteran’s claim of entitlement to service connection, entitlement to service connection arose on the same date. The proper effective date for the award of service connection for peripheral arterial disease of each lower extremity is August 1, 2007. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for adjustment disorder with depressed mood prior to July 30, 2013, and in excess of 30 percent thereafter An August 2013 rating decision increased a previously assigned disability rating for adjustment disorder with depressed mood from 10 percent to 30 percent, effective July 30, 2013. The Veteran seeks an effective date earlier than July 30, 2013 for the assignment of the increased, 30 percent rating. However, the Board recognizes that although the Veteran has perfected an appeal as to this issue, he had previously perfected an appeal as to the 10 percent rating that was continued in an April 2011 rating decision. A dispute as to the effective date assigned for a grant of a staged rating is essentially a dispute as to the rating assigned prior to the effective date of the staged rating. As a result, the Veteran’s claim for an earlier effective date for the 30 percent rating for adjustment disorder with depressed mood is already part of his claim of entitlement to a rating in excess of 10 percent for adjustment disorder with depressed mood. Therefore, this earlier effective date claim is redundant of the increased rating claim and the Board will consider the two independently perfected claims as a single increased rating claim. The Board has recharacterized this earlier effective date claim as a claim for ratings in excess of 10 and 30 percent before and from July 30, 2013, respectively, for adjustment disorder with depressed mood. As a final introductory matter as to this issue, the Board notes that the AOJ construed a claim of entitlement to a temporary total rating for knee surgery and subsequent convalescence under 38 C.F.R. §§ 4.29 and 4.30, which was received on June 28, 2010, to include a claim of entitlement to an increased rating for adjustment disorder with depressed mood. See Aug. 16, 2010 VCAA letter regarding criteria for increased rating for adjustment disorder, hospitalization for surgery, and convalescence; Apr. 28, 2011 rating decision; Sept. 27, 2011 statement of the case (SOC) (each identifying a June 28, 2010 claim of entitlement to an increased rating for adjustment disorder with depressed mood). However, the Veteran’s correspondence received on June 28, 2010 contains no mention of his service-connected psychiatric disability or any expression of disagreement with the 10 percent rating initially assigned in the December 2009 rating decision. Similarly, treatment records that appear to have been received with his June 28, 2010 claim for a temporary total rating based on surgery and subsequent convalescence are entirely silent for complaints or treatment related to psychiatric impairment; rather they pertain to right knee surgery and follow-up care. Finally, having reviewed the Veteran’s claims file, the Board has not located any statement received within one year of the December 2009 notification of the decision granting service connection and a 10 percent rating for adjustment disorder with depressed mood that even remotely expresses disagreement with the initial 10 percent rating assigned. Consequently, because the evidence of record received between December 2009 and December 2010 contains no expressed disagreement with the initial 10 percent rating assigned for psychiatric disability in the December 2009 rating decision, the Board characterizes the current claim for increase (construed from the June 28, 2010 correspondence) as a claim for increase from June 28, 2010 rather than as a claim for an initial rating in excess of 10 percent for adjustment disorder with depressed mood. Having clarified the issue on appeal, the Board finds that additional action is required by the AOJ to afford the Veteran due process. Specifically, since the issue of the proper disability rating for service-connected adjustment disorder with depressed mood was last adjudicated in a September 2011 SOC and before the subsequent rating decision was issued in August 2013, additional medical evidence was added to the claims file. The AOJ should review that evidence in the first instance to determine whether a rating higher than 10 percent is warranted during that time period for adjustment disorder with depressed mood. In addition, because the Veteran was last afforded a VA examination to assess the severity of his psychiatric disability on July 30, 2013, the AOJ should arrange for a new examination. Finally, to ensure the record before the designated examiner is complete, the AOJ should obtain any outstanding treatment records from the San Juan VA Medical Center (VAMC). This matter is REMANDED for the following action: 1. Obtain any outstanding treatment records from the San Juan VAMC dated from February 2013 to April 2013 and from November 2016 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected adjustment disorder with depressed mood. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should describe any social and occupational impairment due solely to the Veteran’s service-connected adjustment disorder with depressed mood. 3. Issue a supplemental statement of the case addressing the issue of entitlement to a rating in excess of 10 percent for adjustment disorder with depressed mood that considers the evidence associated with the claims file since the September 2011 SOC and prior to the August 2013 rating decision, and the issue of entitlement to a rating in excess of 30 percent for adjustment disorder with depressed mood that considers all additional evidence received since the October 2017 SOC. Kelly Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel