Citation Nr: 0001939 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 95-41 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an effective date prior to January 9, 1994, for service connection for traumatic arthritis of the lumbar spine. 2. Entitlement to an effective date prior to January 9, 1995, for service connection for heart disease, to include ischemic heart disease and hypertension. 3. Entitlement to an effective date prior to March 12, 1999, for a rating in excess of 30 percent for heart disease, to include ischemic heart disease and hypertension. WITNESSES AT HEARING ON APPEAL Appellant and his daughter ATTORNEY FOR THE BOARD M. Salari, Associate Counsel INTRODUCTION The appellant had active service from March 1943 to November 1945 and from January to April 1950. This claim was previously before the Board of Veterans' Appeals (Board) from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In a decision dated in September 1997, the Board remanded the issues of entitlement to increased ratings for heart disease and arthritis, and denied his claim for entitlement to an earlier effective date for service connection for arthritis and tinnitus. The appellant's appeal (to the U.S. Court of Appeals for Veterans Claims) of the issue of entitlement to an earlier effective date for service connection for arthritis has been vacated and remanded to the Board. The Board notes that subsequent to our remand in 1997, the RO granted the appellant an increased rating of 40 percent for his arthritis, effective from the date that service connection was established. The appellant has indicated that he is satisfied with this rating percentage. (See appellant's statements dated in June and August 1999.) What is disputed, however, is entitlement to an earlier effective date for the award of service connection (and compensation at the 40 percent level), which is addressed in this decision. In addition, the RO has also granted a 100 percent rating for his heart disease effective from March 1999. The appellant indicates that a rating higher than 30 percent is warranted from the date of the award of service connection. In addition, the issue of entitlement to an earlier effective date for service connection for heart disease has been certified for appeal. In a deferred rating decision, dated in July 1999, the RO advised the appellant that his June 1999 notice of disagreement (NOD) on the issue of entitlement to an earlier effective date for a total rating due to unemployability was not accepted as the time limit for filing an NOD had elapsed. In a subsequent statement dated in August 1999, the appellant again raised the issue of entitlement to an earlier effective date for an award of a total disability rating based on individual unemployability. The Board considers this to be a new claim and is referring the matter to the RO for any further action deemed necessary. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of this appeal has been gathered. 2. The appellant was a prisoner of war during World War II. 3. The appellant filed a claim for service connection for traumatic arthritis on January 9, 1995; no earlier claim, formal or informal, is of record. 4. The appellant filed a claim for heart disease on January 9, 1995; no earlier claim, formal or informal, is of record. 5. A liberalizing law, providing a rebuttable life-time presumption for service connection for arthritis for prisoners of war became effective on October 1, 1986. 6. A liberalizing law amending the term beriberi to include ischemic heart disease in prisoners of war became effective on August 24, 1993. CONCLUSION OF LAW 1. The criteria for an effective date prior to January 9, 1994, for service connection for traumatic arthritis have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 1991); 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400 (1999). 2. The criteria for an effective date of January 9, 1994, for service connection for ischemic heart disease have been met. 38 U.S.C.A. §§ 5101, 5110 (West 1991); 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that this claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a); that is, the appellant has presented a claim that is plausible. He has not alleged that any records of probative value that may be obtained and which have not already been associated with his claims folder are available. Accordingly, the Board finds that all relevant facts have been properly developed, and that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a), has been satisfied. The relevant evidence of record include the appellant's service records which indicate that he was a prisoner of war (POW) for 3 1/2 months. The service medical records include his induction examination report, dated in March 1943, which notes mild short left leg with scoliosis, not significant, not disabling. The separation examination report (from his first period of service), dated in November 1945, which indicates that he denied having received any significant diseases, wounds, or injuries. He was noted to have frostbite of the feet. Examination showed no musculoskeletal defects. Cardiovascular system was normal. An enlistment examination report (second period of service), dated in January 1950, indicates, in relevant part, that examination of the spine and heart noted no significant abnormalities. His discharge examination report for his second period of service (the report is undated), also indicates no significant abnormalities with the spine or heart. A report of a VA examination, dated in January 1948, neither indicates any injuries to the back nor any complaints, symptoms, or diagnosis of arthritis of the back. Cardiovascular system was normal at that time. VA examinations conducted in August 1950 also failed to note any complaints or symptoms pertaining to the back, although there was a diagnosis of mild congenital scoliosis, asymptomatic. A POW medical history, dated in March 1987, indicates, in relevant part, that the appellant reported that the only wounds or injuries received during captivity were to the abdomen and chest, but denied any injury to the back. (See question number 29, which asks to check all blocks (noting area of injury/wound received) that apply.) He also reported that he experienced forced marches and that the forced marches were attacked several times. He stated that his worse experiences as a captive included an incident where 70 men were crammed in a German 40 x 8 boxcar for 5 days. During his captivity, he experienced, among others, (1) numbness, tingling, or pain in the fingers or feet; (2) numbness or weakness in the arms or legs; (3) aches or pains in the muscles and/or joints; and (4) swelling of the legs and/or feet. In response to question number 60B ("briefly describe your present state of health"), he stated that he had shortness of breath and indigestion. In response to question number 62 ("please add any additional comments you wish to make"), he stated that his arms became numb quite often and that the feeling would come back after he raised the arms and clenched the fists. He also stated that parts of his feet were always numb and that he had shortness of breath that would come after slight exertion. The appellant's examination report, also dated in March 1987, indicates that the only injury reported was amputation of the DIP joint of the left little finger during an industrial accident. Physical examination included x-rays of the lumbosacral spine which showed that there were early hypertrophic degenerative changes throughout the lumbar spine. He was noted to have low back stiffness and abnormal mobility in the lumbar spine. Examination also noted high blood pressure readings. Electrocardiogram studies showed ST and I wave abnormality and lateral ischemia was to be considered. The interpretation was that there was ST-T abnormality, nonspecific, probably coronary insufficiency and/or left ventricular overload. During neurologic and psychiatric examinations, there was no mention of any trauma to or any problems with the back. The diagnoses included, in relevant part, degenerative arthritis of the lumbar spine and hypertension. A rating action, dated in July 1987, indicates that the RO found that the evidence did not support an increased evaluation for his service-connected disabilities (trench foot and malnutrition), and that there were no other disabilities that could be attributed to his status as a POW. The rating decision listed hypertension and degenerative arthritis of the lumbar spine as nonservice-connected disabilities. In a subsequent letter, also dated in July 1987, the appellant was notified that there was no basis for an increased rating for his service connected disabilities and that "examination did not find any other disabilities that were incurred or aggravated as a result of [his] prisoner of war status." The RO received a claim for service connection for traumatic arthritis on January 9, 1995. The appellant also reported at that time that he visited a VA hospital every 6 months for blood profile tests relating to high blood pressure. Subsequently, he submitted various statements (and testimony) reporting that he sustained injuries to his low back while a POW. He also submitted, in May 1995, an updated POW medical history in which he reported, among other problems, that he had swelling of the extremities and high blood pressure. Subsequent rating action awarded the appellant service connection for traumatic arthritis, effective from January 9, 1994, pursuant to the provisions of 38 C.F.R. § 3.114(a)(3), which allow an effective date one year earlier than the filing of a claim where entitlement is based on a liberalizing law and the claim is filed more than one year after the effective date of the liberalizing law. (A liberalizing law providing a rebuttable life-time presumption of service connection for traumatic arthritis for POW's became effective on October 1, 1986. 38 U.S.C.A. § 1112(b)(12); see Allin v. Brown, 6 Vet.App. 207, 211 (1997)). He was also awarded service connection for his heart disease effective from January 9, 1995. Service connection may be awarded the day following separation from service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of the receipt of the claim, or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(1)(ii)(B)(2). A specific claim in the form prescribed by the Secretary (of VA) must be filed in order for benefits to be paid or furnished to any individual. 38 U.S.C.A. § 5101 (West 1991); see also Crawford v. Brown, 5 Vet.App. 33, 35 (1993). A claim is a formal or an 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). An informal claim is any communication or action from, among others, the claimant, indicating an intent to apply for benefits. Such informal claim must identify the benefits sought. 38 C.F.R. § 3.155. Traumatic Arthritis Having considered the laws and the facts applicable to this case, the Board finds that an earlier effective date for the grant of service connection for traumatic arthritis is not warranted. The Board does not find that any claim, formal or informal, was filed prior to January 9, 1995. There is no basis for construing the appellant's 1987 POW medical history and subsequent medical examination as an informal claim; there is no indication in these materials that there was an intent to apply for service connection for traumatic arthritis or other disability of the low back. Certainly, he did not identify the benefit being sought as service connection for arthritis of the back. First, in 1987, the appellant reported that the only injuries he sustained during captivity were to his abdomen and his chest. The effect of having done so was to have denied that there were any other injuries, including injuries to his back. While he did indicate that there were forced marches and he did report aches and pains in the muscles/joints, there is nothing in the record which indicates that he was alleging that the forced marches resulted in injury involving the back or disability of the back or that the muscle/joint pain to which he referred included his spine. Rather, the musculoskeletal complaints he had were primarily in the extremities. The Board notes, in particular, that in response to questions 60B and 61 (mentioned above), he addressed problems with his hands and feet, shortness of breath, and indigestion, but not his back. Further, there was no diagnosis of traumatic arthritis of the spine at that time. The Board notes that the 1987 medical examination mentioned that the appellant had stiffness in the back and he was diagnosed with arthritis. However, the diagnosis was degenerative, not traumatic arthritis. Again, the appellant gave no indication that he was claiming that such arthritis was due to in- service trauma. The medical history portion of the examination indicates that the only injury he reported was an amputation of the DIP joint in the left little finger during an industrial accident. During his neurological and psychiatric examinations, he reported many other medical conditions, but never indicated that he had back problems as a result of his POW experience. In short, the Board finds that there is absolutely no evidence within the record which would lead anyone to think that the appellant was seeking service connection for traumatic arthritis or other back disability due to his POW status prior to the date of his claim in January 1995. As 38 C.F.R. § 3.114(a)(3) permits an effective date one year prior to the date of the filing of the claim, the effective date of January 9, 1994 is appropriate. Accordingly, the claim must be denied. Heart Disease A VA examination, dated in June 1995, indicates that the appellant's blood pressure readings were at 158/88 and 160/92. PMI was felt in the midclavicular line. The heart beats were regular and there was no murmur or gallop. The examiner's diagnosis states that "[t]here is absence of clear cut signs of any cardiac disease, even the veteran stated he would like to claim for a general physical and particularly, he might have 'ischemic heart disease,' although he denied any angina, but only a possible retention of fluid relieved with Hydrochlorothiazide." Private medical records dated in January 1996 note that the appellant reported having had hypertension for some time. He had some chest pain in 1985 and was treated with medications. Apparently, with hypertension control with hydrochlorothiazide, he improved. He had had some vague symptoms since that time, but recent nausea and some intermittent dizziness prompted further evaluation at the VA. On a good day, he was able to walk without difficulty. At about fifty yards, he did have some leg pain, which could be related to ischemic heart disease. There was no marked claudication that was well defined. There was no PND. Physical examination revealed no marked peripheral stigmata of coronary disease. He did have modest ear lobe decreases. There was no distinct xanthelasma. A definite carotid bruit could not be appreciated. There was no JVD or thyromegaly. Occasional ectoptics were noted. The possibility of ischemia could not be ruled out. Radionuclide stress test results in February 1996 showed stress test impression of clinically positive for ischemia and borderline electrically for ischemia. Radionuclide myocardial perfusion imaging showed no significant ischemia and low probability for inferoposterior scar. Wall motion showed no hypokinesis and ejection fraction was 49 percent. The appellant subsequently (in February 1996) underwent a left heart catheterization with coronary and left ventricle angiography via the left femoral approach. The diagnosis was epicardial vessel stenosis, which appeared to be relatively diffuse. A report of a VA examination, dated in August 1996, indicates that after service, the appellant developed intermittent chest pain. It lasted two to three minutes and subsided when he took deep breaths and rested. One day when the pain was persistent, he went to the doctor and was found to have high blood pressure; he was given Hydrochlorothiazide. He continued to have chest pain since then. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, or dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph 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. 38 C.F.R. § 3.114. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114. A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160. The appellant contends that the date of the award of service connection for his ischemic heart disease should be the effective date of the liberalizing law (August 24, 1993) which amended the term beriberi heart disease to include ischemic heart disease in a POW who experienced localized edema in captivity. 59 Fed.Reg. 35464-35465 (July 12, 1994). The Board finds that an earlier effective date of January 9, 1994, but no earlier, may be awarded in this case. The Board notes that there is no evidence of record which indicates that there was a claim, formal or informal, filed by the appellant prior to January 9, 1995. In fact, it is questionable whether his January 9, 1995, claim, or his May 1995 POW medical history, can be considered a claim for ischemic heart disease as the only possibly relevant disability he was claiming at these times was hypertension. Moreover, the record does not even indicate that there was a confirmed formal diagnosis of heart disease until 1996. In view of the fact, however, that hypertension is a recognized risk factor for heart disease, and resolving any and all doubts in the appellant's favor, the Board will construe his January 9, 1995, claim as a claim for service connection for ischemic heart disease. Given the current medical diagnosis of ischemic heart disease, and considering the 1987 EKG results in retrospect, and again, resolving all reasonable doubt in the appellant's favor, the Board finds that this disability was probably existent in 1987 and that under 38 C.F.R. § 3.114, an effective date 1 year earlier than the date of his claim may be awarded. An earlier date cannot be granted because his claim was filed more than 1 year after the effective date of the liberalizing law. 38 C.F.R. § 3.114. ORDER Entitlement to an effective date prior to January 9, 1994, for service connection for traumatic arthritis of the lumbar spine is denied. Entitlement to an effective date of January 9, 1994, for service connection for heart disease, to include ischemic heart disease and hypertension, is granted. REMAND The appellant has reported that he underwent a heart catheterization in 1997; however, records of that procedure are not associated with the claims file. Given that the Board has granted an earlier effective date for service connection for heart disease, and given that not all pertinent medical records have been associated with the claims file, the Board finds that a remand on the increased rating issue is necessary. Accordingly, this case is REMANDED for the following: 1. The RO should take the necessary steps to obtain all medical records (not already associated with the claims file) for the period from 1993 through March 1999, pertaining to treatment the appellant has received for his heart disease, to include the heart catheterization in 1997, and associate them with the claims file. The RO should specifically ask that the appellant identify all VA and private health care providers that have rendered treatment during this time-period and take the necessary measure to obtain such treatment records. 2. The RO should then adjudicate the increased rating claim (for the period from January 9, 1994 to March 1999). If the benefit sought on appeal is not granted to the appellant's satisfaction, following the usual appellate procedures, the claim should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. NANCY I. PHILLIPS Member, Board of Veterans' Appeals