Citation Nr: 21066583 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 19-09 685 DATE: November 1, 2021 ORDER Entitlement to an effective date prior to October 10, 2015, for entitlement to service connection for coronary artery disease (CAD) is denied. Entitlement to an initial 60 percent rating for CAD is granted. Entitlement to service connection for an acquired psychiatric condition, claimed as posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 20 percent for residuals of prostate cancer is remanded. FINDINGS OF FACT 1. Pursuant to a liberalizing law, the Veteran was eligible for an effective date one year prior to the receipt of his claim for CAD because he was diagnosed with CAD prior to August 31, 2010, the date CAD was added to the list of disabilities eligible for presumptive service connection due to herbicide exposure. 2. For the period on appeal, the Veteran's CAD has been manifested by a workload of greater than 5 METs but not greater than 7 METs that results in fatigue and syncope, and evidence of left ventricular hypertrophy, mild left ventricular-diastolic dysfunction, and a moderately dilated left ventricle cavity, on echocardiogram. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an acquired psychiatric condition, to include PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 10, 2015, for entitlement to service connection for CAD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.400, 3.816. 2. The criteria for an initial 60 percent rating for CAD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 3. The criteria for service connection for an acquired psychiatric condition, claimed as posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from June 1967 to July 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). Prior to the Veteran's hearing being conducted, he submitted a statement indicating that he wished to withdraw his request for a hearing. See Third Party Correspondence, submitted October 1, 2021. As such, the Board deems his request for a hearing withdrawn. 38 C.F.R. § 20.704(e). Earlier Effective Date 1. Entitlement to an effective date prior to October 10, 2015, for entitlement to service connection for coronary artery disease (CAD) 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 a claim for service connection or for an increase of compensation "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). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increased compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. The law provides one exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). The regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). The Board observes that VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicide agents. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, a Nehmer class member is defined as a Vietnam Veteran who has a covered herbicide agent related disease, including coronary artery disease. Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide agent related disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law, which, in this case is August 31, 2010, for coronary artery disease. See 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Certain additional exceptions were also set forth that are not pertinent to this appeal. In the instant case, the Veteran served in Vietnam and has a diagnosis of CAD. Therefore, he is considered a Nehmer class member and, as such, the provisions of 38 C.F.R. § 3.816 are applicable. For the reasons stated below, the Board finds that the Veteran is not entitled to an effective date earlier than October 10, 2015, for CAD. First, the Veteran's original claim for service connection for CAD was received on October 10, 2016, more than one year after the Veteran's separation from active duty. There is no evidence of a formal claim or an informal claim prior to October 10, 2016. The record shows that the Veteran filed a claim for education benefits in 1969 that was granted in 1970. There was no other correspondence or communication from the Veteran between 1970 and October 10, 2016. The Board finds that while the Veteran is a Nehmer class member, he is not entitled to an earlier effective date of disability compensation pursuant to 38 C.F.R. § 3.816. The Veteran was not denied compensation for CAD from September 25, 1985, and May 3, 1989. His claim for CAD also was not pending or received by the VA between May 3, 1989, and August 31, 2010. Since the requirements of 38 C.F.R. § 3.816(c)(1) or (c)(2) are not met, the effective date of the award shall be determined by §§ 3.114 and 3.400. Pursuant to 38 C.F.R. § 3.114, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA 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 administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). 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). Here, the Veteran filed his claim of service connection for CAD on October 10, 2016. He was initially granted service connection for the condition in a February 2017 rating decision, effective October 10, 2016. In a March 2019 rating decision, the Veteran was granted an earlier effective date of October 10, 2015, based on evidence that established that he was diagnosed with coronary artery disease as early as February 4, 2008, well before CAD was added to the list of presumptive disabilities related to herbicide exposure on August 31, 2010. Under 38 C.F.R. § 3.114 (a)(2), the Veteran is entitled to an effective date one year prior to the date the claim was received, as he was exposed to herbicides during his service in Vietnam, was diagnosed with CAD prior to August 31, 2010, and his eligibility existed continuously from the date of the law change to the date of the claim. Therefore, the Veteran is entitled to an effective date of October 10, 2015, but no earlier, for service connection for CAD. As the Veteran is already in receipt of an effective date of October 10, 2015, he is not entitled to an earlier effective date, and his claim of entitlement to an earlier effective date for service connection for CAD must be denied. Increased Rating 2. Entitlement to rating in excess of 30 percent for CAD The Veteran was granted service connection for CAD in a February 2017 rating decision, evaluated as 10 percent disabling. In a March 2019 rating decision, the Veteran was granted an increased initial 30 percent rating. He contends that an initial rating in excess of 30 percent is warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Coronary bypass surgery is rated pursuant to 38 C.F.R. § 4.104, DC 7017. The rating criteria for both DCs are almost identical. Under both DC 7005 and DC 7017, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent rating 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 evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating 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. A 100 percent rating is warranted where there is chronic congestive heart failure, or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005, 7017. DC 7017 differs in that it also allows a temporary 100 percent rating for three months following hospital admission for surgery. 38 C.F.R. § 4.104, DC 7017. One metabolic equivalent (MET) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing 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. Id. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase "30 to 50 percent" means 30 percent through 50 percent. Id. at 380. Turning to the medical evidence of record, the Veteran was afforded a VA examination in January 2017. At the time, the Veteran reported walking one mile daily and being able to take 2-3 flights of stairs. He also reported that continuous medication was required for control of his CAD. The examiner noted that the Veteran did not have congestive heart failure (CHF), cardiac arrhythmia, a heart valve condition, infectious heart conditions, or pericardial adhesions. With regard to surgical procedures, the Veteran was noted to have undergone a percutaneous coronary intervention angioplasty in 2006. As to diagnostic testing, the examiner noted that the Veteran had a normal EKG in January 2017. A November 2016 echocardiogram showed a LVEF of 66 percent, and a January 2017 multigated acquisition scan (MUGA) showed a LVEF of 60 percent. On METs testing, the Veteran showed symptoms of fatigue with a METs level of 5-7, which was found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). The Veteran's private treatment records show a history of LVEF between 60-66 percent and a MET level of 10.1 prior to the period on appeal. See Medical Treatment Record Non Government Facility, submitted in April 2019, April 2017, March 2017, February 2017, and October 2016. A March 2011 private echo study from Shore Heart Group shows findings of moderate concentric left ventricular hypertrophy and mild left ventricular-diastolic dysfunction. See Medical Treatment Record Non Government Facility, submitted in October 2016. A November 2016 private treatment record from Shore Heart Group shows concentric hypertrophy of the left ventricle and a moderately dilated left ventricle cavity. See Medical Treatment Record Non Government Facility, submitted in April 2017. A January 2018 private treatment record from Shore Heart Group shows a finding of symptomatic irreversible bradycardia with associated syncope which was treated by the placement of a pacemaker. See Medical Treatment Record Non Government Facility, submitted in April 2019. In this case, the Board finds that a 60 percent initial evaluation is warranted as the medical evidence of record shows a workload of greater than 5 METs but not greater than 7 METs that results in fatigue and syncope, and evidence of left ventricular hypertrophy, mild left ventricular-diastolic dysfunction, and a moderately dilated left ventricle cavity, on echocardiogram. As noted above, the Otero-Castro court held that a veteran is entitled to a 60-percent rating by showing "left ventricular dysfunction" or "left ventricular ejection fraction of 30% through 50%. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). An increased 100 percent rating is not warranted as there is no evidence of chronic congestive heart failure, or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with ejection fraction of less than 30 percent. Thus, the Board concludes that the criteria for an initial 60 percent rating, but no higher, have been met. Service Connection 3. Entitlement to service connection for an acquired psychiatric condition, claimed as posttraumatic stress disorder (PTSD) The Veteran contends that his current claimed psychiatric condition is related to active service. The question for the Board is whether the Veteran has a disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a diagnosis of a psychiatric condition, to include PTSD, and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The medical evidence of record is silent as to any treatment for, or diagnosis of a psychiatric condition prior to service or during active service. Additionally, the Veteran does not contend, and the evidence of record does not indicate that he has ever sought treatment for a psychiatric condition. The January 2017 VA examiner evaluated the Veteran and determined that, while he experienced subjective symptoms of sadness due to the unexpected death of his son, he did not meet the criteria for a diagnosis of PTSD. The examiner also noted that the Veteran denied having any symptoms of a mental disorder. With regard to stressor events, the Veteran reported seeing a dead body that had been exposed to the elements, and being wounded by shrapnel in Vietnam. However, the examiner indicated that the Veteran did not meet several of the criteria for a diagnosis of PTSD. The examiner also concluded that the Veteran did not have a diagnosis of any other mental disorder. Additionally, the Veteran reported that he did not feel he had any mental disorders, but agreed to examination as recommended by a veteran's service representative. In this case, there is no competent medical or lay evidence of record that establishes that the Veteran has a current diagnosis of any psychiatric condition. Absent a showing of a diagnosis due to disease or injury, service connection for a psychiatric disorder cannot be granted. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for residuals of prostate cancer is remanded. The Veteran contends that a rating in excess of 20 percent is warranted for his residuals of prostate cancer. While the AOJ afforded the Veteran a VA examination in January 2017, the examination report is not adequate for rating purposes. For example, private medical records note the presence of hypertension and benign essential hypertension during the period on appeal. See Medical Treatment Record Non Government Facility, submitted February 21, 2017. The Veterans disability is rated under Diagnostic Code 7528, which requires a rating under 38 C.F.R. § 4.115a for voiding or renal dysfunction. The rating criteria for renal dysfunction contemplates hypertension and edema. As the VA examination did not discuss the presence of edema or hypertension, it is inadequate for adjudicative purposes. Thus, remand is necessary for a new examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his residuals of prostate cancer. The examiner should provide a full description of the disorder and report all signs and symptoms necessary for evaluating the Veteran's disorder under the rating criteria. The examiner should address any voiding dysfunction and any renal dysfunction, and determine which dysfunction is predominant. A complete medical rationale for all opinions expressed must be provided. The Veteran is competent to attest to factual matters of which the Veteran has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.