Citation Nr: 21008638 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-54 982 DATE: February 17, 2021 ORDER 1. The appeal regarding the propriety of the reduction of the rating for bilateral hearing loss from 20 percent to 10 percent effective December 19, 2016, is dismissed. 2. Entitlement to an effective date prior to September 12, 2016, for the award of service connection for cardiomyopathy is denied. 3. Entitlement to an effective date prior to September 12, 2016, for the award of service connection for sinus tachycardia is denied. REMANDED 4. Entitlement to a rating in excess of 10 percent for chronic obstructive pulmonary disease (COPD) is remanded. 5. Entitlement to permanency of a total rating for service-connected cardiomyopathy is remanded. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to September 12, 2016, is remanded. FINDINGS OF FACT 1. At the March 2020 videoconference hearing, prior to the promulgation of a Board decision in the matter, the Veteran requested withdrawal of his appeal regarding the propriety of a reduction in the rating for bilateral hearing loss from 20 percent to 10 percent. 2. A final November 2013 rating decision denied service connection for cardiomyopathy; clear and unmistakable error (CUE) in that decision has not been alleged (and is not evident). 3. After the November 2013 rating decision, the first communication from the Veteran to VA seeking service connection for cardiomyopathy was received on September 12, 2016. 4. A final November 2013 rating decision denied the Veteran service connection for sinus tachycardia; clear and unmistakable error (CUE) in that decision has not been alleged (and is not evident). 5. After the November 2013 rating decision, the first communication from the Veteran to VA seeking service connection for sinus tachycardia was received on September 12, 2016. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal are met with respect to a claim regarding the propriety of a reduction in the rating for bilateral hearing loss from 20 percent to 10 percent; the Board has no further jurisdiction to consider an appeal in the matter. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. An effective date earlier than September 12, 2016, for the grant of service connection for cardiomyopathy is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. An effective date earlier than September 12, 2016, for the grant of service connection for sinus tachycardia is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1975 to March 1978. These matters are before the Board of Veterans’ Appeals (Board) on appeal of December 2015, November 2016, and December 2016 rating decisions. In March 2020, a videoconference hearing was held before the undersigned; a transcript is in the record. The TDIU issue (for prior to September 12, 2016, the effective date of a 100 percent schedular rating for cardiomyopathy) has been added to the appeal as part of an increased rating claim (asserted by the Veteran or raised by the record). Rice v. Shinseki, 22 Vet. App. 447 (2009). In March 2020, the Veteran’s attorney submitted a statement asserting that he has been unemployable due to service-connected disabilities since 2010, and citing to a previous (November 2010) TDIU application (thus raising a TDIU claim). 1. The appeal regarding the propriety of the reduction of the rating for bilateral hearing loss from 20 percent to 10 percent effective December 19, 2016, is dismissed. The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511(a) is subject to a decision by the Secretary. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn by the appellant or by his or her authorized representative, in writing or on the record at a hearing, at any time before the Board promulgates a decision in the matter. 38 C.F.R. § 19.55. At the March 2020 videoconference hearing, the Veteran expressed his intent to withdraw his appeal regarding the propriety of the reduction of the rating for bilateral hearing loss from 20 percent to 10 percent. A withdrawal of an appeal is effective when received. 38 C.F.R. § 19.55. Accordingly, there remains no question of fact or law in the matter for the Board to consider, and the Board does not have jurisdiction to further consider an appeal in the matter. 2., 3. Entitlement to an effective date prior to September 12, 2016, for the awards of service connection for cardiomyopathy and sinus tachycardia, is denied. Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, the effective dates of service connection for cardiomyopathy and sinus tachycardia are based on reopened claims, and the effective date of an award of compensation based on a reopened claim (after a final disallowance) is the date of new claim or the date entitlement arose, whichever is later [emphasis added]. 38 C.F.R. § 3.400 (q)(2), (r). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd 349 F.3d 1326 (Fed. Cir. 2003). “Nothing in the statute indicates that an effective date can be set based upon an application that resulted in a final disallowance of the claim.” Wright v. Gober, 10 Vet. App. 343, 347 (1997). For the Veteran to be awarded an effective date based on an earlier claim, he or she has to show clear and unmistakable error (CUE) in the prior denial of the claim. Flash, 8 Vet. App. 332, 340 (1995); see also Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The Veteran submitted original claims of service connection for cardiomyopathy and sinus tachycardia on September 21, 2010. A December 19, 2011 rating decision denied those service connection claims, and he was notified of this decision on February 1, 2012. He filed a timely notice of disagreement (NOD) on February 16, 2012, and a Statement of the Case (SOC) was issued on October 21, 2012. He did not thereafter perfect the appeal (by submitting a timely substantive appeal), and the December 2011 rating decision became final. CUE in that rating decision has not been alleged (and is not evident). The Veteran submitted a claim to reopen claims of service connection for cardiomyopathy and sinus tachycardia on February 19, 2013. A November 25, 2013 rating decision denied those claims, and he was notified on December 10, 2013. On April 23, 2014, he submitted a timely NOD, and a SOC was issued on January 8, 2015. He did not thereafter perfect the appeal (by submitting a timely substantive appeal), and the November 2013 rating decision became final. CUE in that rating decision has not been alleged (and is not evident). On September 12, 2016, VA received the instant claim seeking service connection for cardiomyopathy and sinus tachycardia. The November 2016 rating decision on appeal granted service connection for cardiomyopathy and sinus tachycardia, each effective September 12, 2016. In a February 6, 2017 statement, the Veteran’s attorney asserts that on or about April 2013, he reopened the claims of service connection for cardiomyopathy and sinus tachycardia, and that in April 2014, he submitted a NOD requesting that the issues of sinus tachycardia and cardiomyopathy be placed on hold until a decision was rendered by the Board for the issue of respiratory disorder. She asserts that, thereafter, a February 2016 rating decision granted service connection for restrictive lung disease, and, therefore, the effective dates of service connection for cardiomyopathy and sinus tachycardia should be no later than April 2013. The Board notes that the claims of service connection for cardiomyopathy and sinus tachycardia could have been preserved on appeal if a timely (within 60 days after issuance of the January 2015) substantive appeal) substantive appeal had been submitted. However, a timely substantive appeal was not submitted, the appeal lapsed, and, as noted above, the November 2013 rating decision became final. As the November 2013 rating decision was the (latest) prior final denial of service connection for a cardiomyopathy and sinus tachycardia, under the governing law and regulations (38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2)), and interpretive caselaw (cited above), an award of compensation (service-connection) for cardiomyopathy and sinus tachycardia may not be made effective prior to the filing of a claim to reopen (a new claim seeking service connection for cardiomyopathy and sinus tachycardia). There is no communication from the Veteran in the record seeking to reopen the claims of service connection for a cardiomyopathy and sinus tachycardia received between March 2015 (when the appeal lapsed, and the November 2013 rating decision became final) and September 12, 2016. It has not been alleged that such a claim (informal under 38 C.F.R. § 3.155 (a) or formal under 38 C.F.R. § 3.157) was filed during that intervening period. There is no legal basis for an effective date for the award of service connection for cardiomyopathy and sinus tachycardia prior to the September 12, 2016 [receipt of claim to reopen] date assigned. The appeals seeking earlier effective dates for the awards of service connection must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS FOR REMAND 4. Entitlement to a rating in excess of 10 percent for COPD. The most recent VA examination to assess the Veteran’s COPD was in August 2015. At the March 2020 videoconference he alleged that the rating assigned does not reflect the current severity of the COPD. He reported difficulty breathing while walking, shopping, or engaging in activity that required little exertion, and he related that he used a steroid inhaler and a quick-acting rescue inhaler when needed, and nebulizer medicine up to four times a day. Considering the allegation of worsening, and the duration of the interval since he was last examined, a contemporaneous examination to assess the severity of his COPD is necessary. The record reflects that the Veteran receives ongoing private treatment for COPD. Updated records of such treatment are pertinent evidence in the claim for increase, and must be secured. Additionally, the most recent records of his VA treatment in the claims file are from July 2020. Updated records of any VA treatment he may have received for COPD are pertinent evidence that is constructively of record, and must be obtained. 5. Entitlement to permanency of a total rating for service-connected cardiomyopathy. Total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of total disability exists when such impairment is reasonably certain to continue throughout the life of the disabled person. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. The age of the disabled person may be considered in determining permanence. 38 C.F.R. § 3.340(b). Although the Veteran submitted statements in March 2009 from a private provider who opined that he was totally and permanently disabled, and in February 2017 and August 2019 from additional private providers who opined that the Veteran was permanently disabled due to underlying heart and lung disease, the statements provide no rationale as to why the disorder was considered to be total and permanent. Notably, an April 2020 private medical statement indicates that the Veteran has multiple medical problems and that although separately any one medical condition might not be totally disabling, any individual with the combined disabilities of cardiomegaly, asbestosis, and pulmonary hypertension would be totally disabled. Such a statement suggests that total disability for cardiomyopathy (of itself), may not be permanent. Therefore, a medical opinion that addresses whether total disability of the service-connected cardiomyopathy is permanent is necessary. The record reflects that the Veteran receives ongoing VA and private treatment for cardiac disability. In a June 2020 private treatment record, the provider notes that his current cardiomyopathy symptoms seem worse than one would expect based on previous measurements of ejection fraction and that because many of the (cardiovascular function) tests performed are several years old, an echocardiogram and treadmill stress test (which were scheduled but cancelled due to COVID-19) to assess his current cardiac status should be scheduled. Records of any such testing are not in the claims file and should be sought. The most recent records of the Veteran’s VA treatment in his claims file are from July 2020. Updated records of any VA treatment he may have received for cardiomyopathy are pertinent evidence that is constructively of record, and must be secured. 6. Entitlement to a TDIU rating prior to September 12, 2016. The claim of entitlement to TDIU prior to September 12, 2016, is inextricably intertwined with the COPD claim being remanded (an increased rating for COPD during the period for consideration (from May 2009 to September 2016), would impact on the analysis of the TDIU claim). Therefore, consideration of the TDIU claim must be deferred. The matters are REMANDED for the following: 1. Ask the Veteran to submit authorizations for VA to obtain private treatment records from any (all) private providers of his COPD and cardiomyopathy during the evaluation period (any such records not already associated with the claims file). Secure the complete records of all such evaluations and/or treatment from the providers identified. If any private records identified are not received pursuant to a VA request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. 2. Secure for the record complete clinical records of all VA evaluations and treatment the Veteran has received for COPD and cardiomyopathy that are not already associated with the record, to specifically include complete (updated to the present) records since July 2020. If any such records are unavailable, the reason for their unavailability must be explained in the record. 3. When the development sought above is completed, arrange for a pulmonary diseases examination of the Veteran to assess the current severity of his COPD. His claims file must be reviewed by the examiner in conjunction with the examination. A complete history should be elicited, to include the types of medications that have been used/prescribed to treat the service-connected disability. The examination must also include pulmonary function tests that include FEV-1, FVC, and DLCO(SB) ratios (unless the examiner states, with explanation, the DLCO testing would not be helpful) as well as the maximum oxygen consumption (measured in ml/kg/min); values for each must be obtained and reported or the examiner must indicate why a particular test was not clinically indicated. The findings reported should be sufficiently detailed to allow for consideration of all criteria in 38 C.F.R. § 4.97, Code 6604. Further, after a review of the relevant outpatient treatment records, the examiner must indicate whether the Veteran has required outpatient oxygen therapy, and whether he has cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, and/or episodes of acute respiratory failure related to his COPD. The examiner must include rationale with all opinions. 4. Then arrange for the Veteran’s record to be forwarded to an appropriate clinician (in cardiology/internal medicine, e.g.) for review and an advisory medical opinion addressing whether the currently established total disability of his cardiomyopathy is reasonably shown to be permanent in nature. [If further examination of the Veteran is needed for this opinion sought, such should be arranged. Specifically, the consulting provider should indicate whether there is: (a) congestive heart failure; (b) a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or (c) an LVEF of less than 30 percent, that is reasonably shown to be permanent in nature (not expected to improve). The opinion must include complete explanation of rationale, with citation to supporting clinical data and medical principles. 5. When the development sought above is completed, arrange for all further development necessary (with the Veteran’s/his attorney’s participation/co-operation), and adjudicate raised claim of entitlement to a TDIU rating prior to September 12, 2016. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.