Citation Nr: 1030764 Decision Date: 08/17/10 Archive Date: 08/24/10 DOCKET NO. 06-25 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. What initial evaluation is warranted for residuals of a cerebrovascular accident (stroke), with transient ischemic attacks, right facial numbness and tingling from May 5, 2005 to December 26, 2006? 2. What initial evaluation is warranted for residuals of a cerebrovascular accident (stroke), with transient ischemic attacks, right facial numbness and tingling since December 27, 2006? 3.. What initial evaluation is warranted for coronary artery disease from May 5, 2005 and December 26, 2006? 4. What initial evaluation is warranted for coronary artery disease since December 27, 2006? 5. What initial evaluation is warranted for hypertension from May 5, 2005 and December 26, 2006? 6. What initial evaluation is warranted for hypertension since December 27, 2006? 7. What initial evaluation is warranted for right upper extremity peripheral neuropathy, residuals of a stroke associated with type II diabetes mellitus, from May 5, 2005? 8. What initial evaluation is warranted for right lower extremity peripheral neuropathy, residuals of a stroke associated with type II diabetes mellitus, from May 5, 2005? REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1968. This appeal to the Board of Veterans' Appeals (Board) arose from rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Detroit, Michigan. An August 2005 rating decision granted, in pertinent part, entitlement to service connection for coronary artery disease, and for hypertension with residuals of a cerebrovascular accident and transient ischemic attacks associated with type II diabetes mellitus, and assigned initial noncompensable evaluations, effective May 5, 2005. The rating decision also granted entitlement to service connection for bilateral lower extremity peripheral neuropathy, associated with type II diabetes. The Veteran appealed the ratings assigned hypertension, coronary artery disease, and residuals of a stroke. In July 2006, a statement of the case was issued addressing entitlement to increased initial ratings for coronary artery disease, hypertension, and residuals of a cerebrovascular accident with ischemic attacks. The Board notes that in July 2006, the only disorder associated with the stroke was hypertension. The July 2006 statement of the case did, however, provide notice of the laws and regulations governing the assignment of ratings for median nerve paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2009). The statement of the case did not provide notice of the regulations governing the assignment of a rating under 38 C.F.R. § 4.124a, Diagnostic Code 8713 (radicular group neuralgia). A July 2006 rating decision granted entitlement to initial 10 percent evaluations for coronary artery disease, hypertension, and for a cerebrovascular accident with transient ischemic attacks each effective May 5, 2005. The Veteran continued his appeal for an even higher rating. A December 2006 rating decision granted service connection for right facial numbness and pain, and a 20 percent evaluation for right upper extremity numbness, both effective May 2005, and both as residuals of the stroke. This rating decision also added the phrase, "residuals of a stroke" to the description of the appellant's right lower extremity peripheral neuropathy. The issues of entitlement to increased initial ratings for residuals of right upper and lower extremity peripheral neuropathy, residuals of a stroke; as well as the issues of entitlement to increased ratings for seventh cranial nerve paralysis, hypertension and coronary artery disease since December 27, 2006 are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Between May 5, 2005 and December 26, 2006, the Veteran's stroke residuals involving the seventh cranial nerve were not manifested by more than moderate incomplete paralysis. 2. Between May 5, 2005 and December 26, 2006, the Veteran's coronary artery disease has not been manifested by an inability to perform a workload less than 7 METs at any time during the initial rating period. 3. Between May 5, 2005 and December 26, 2006, the Veteran's hypertension has not been manifested by a predominantly diastolic pressure of 110 or more, or a predominantly systolic pressure of 200 or more at any time during the initial rating period. CONCLUSIONS OF LAW 1. Between May 5, 2005 and December 26, 2006, the requirements for an initial evaluation higher than 10 percent for right-sided facial numbness, a residual of a stroke, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.124a, Diagnostic Codes 8009, 8207 (2009). 2. Between May 5, 2005 and December 26, 2006, the requirements for an initial evaluation higher than 10 percent for coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.104, Diagnostic Code 7005 (2009). 3. Between May 5, 2005 and December 26, 2006, the requirements for an initial evaluation higher than 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.104, Diagnostic Code 7101 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159(c). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Governing Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58. In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the Veteran's coronary artery disease, stroke residuals, and hypertension. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Fenderson, 12 Vet. App. At 126. Analysis Stroke residuals. The rating criteria require that residuals of a brain hemorrhage to be rated at 100 percent for the first six months after the event. See 38 C.F.R. § 4.124a, Diagnostic Code 8009. The evidence of record notes the Veteran experienced his stroke in September 2004. VA received his claim for benefits in May 2005, which is more than six months after his stroke. As a result, his stroke must now be rated on the basis of the residuals. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. Similarly, neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. A July 2005 VA examination report notes the Veteran is right handed. The examiner noted a private MRI examination showed left lacunar infarct and also small vessel disease throughout the brain. The Veteran reported his only residual as numbness on the right side of his body. He denied any loss of motor function, but did note his balance had been off, including prior to his stroke. A prior history of "tarsal" tunnel syndrome was noted. The Veteran stated that he could walk 1000 feet before he experienced calf cramping. Physical examination in July 2005 revealed vibratory sensation as intact but reduced over the right ankle, right knee, right elbow, and right wrist. Monofilament sensation was absent at the base of the feet up to the tops of the right and left feet and up to mid to upper anterior and posterior calves bilaterally. It was intact at the remaining dermatomes. Reflexes were blunted at the patellar, biceps, and plantar. The examiner noted the Veteran's stroke and diabetes were associated, so the RO arranged a separate examination to determine the extent of the stroke residuals. The September 2006 peripheral nerve examination notes the Veteran reported numbness of the right side of his body, a restricted use of his right arm, and tingling on the right side of his face. He reported his current treatment as aspirin daily. Physical examination revealed muscle tone as symmetric with no evidence of rigidity or tremor. Muscle strength was 5/5 bilaterally from the deltoid down to foot inversion. There was decreased vibration sense at the right knee and ankle. Light touch was decreased at the base of the feet to the top of the right foot. At the right upper extremity, vibration was decreased at the elbow and wrist. Pain and light touch sensations were normal. The left lower extremity showed a normal vibratory sense, but light touch was decreased at the base of the foot to the mid calf. Lower extremity reflexes were essentially normal save for a 1+ knee reflexes and absent ankle reflexes. There was no muscle atrophy, abnormal muscle tone or bulk, or tremors, tics, or other abnormal movements. Gait and balance were normal. The diagnosis was left lacunar thalamic infarct with residual right-sided numbness, and neuralgia was present. The Veteran noted he was unemployed since November 2004. The examiner noted the Veteran's bilateral lower extremity peripheral neuropathy was most likely secondary to his diabetes mellitus, for which he is separately rated. The examiner further noted the stroke residuals were right-sided numbness and tingling without true pain. The degree of motor impairment was judged to be minimal. In July 2006, the RO initially assigned the minimum 10 percent compensable evaluation for the Veteran's stroke residuals. See 38 C.F.R. § 4.124a, Diagnostic Code 8009. VA outpatient records, however, noted the Veteran experienced a transient ischemic attack in October 2006, where he reported having lost his speech and forgot names for over an hour. Hence, a December 2006 rating decision granted service connection for right facial numbness and pain, and a 20 percent evaluation for right upper extremity numbness, both effective May 5, 2005, and both as residuals of the stroke. This rating decision also added the phrase, "residuals of a stroke" to the description of the appellant's right lower extremity peripheral neuropathy. Cranial Nerve VII pertains to an impairment of facial muscles. Moderate incomplete paralysis of this nerve warrants a 10 percent rating, whereas severe incomplete paralysis of the nerve warrants a 20 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8207. The September 2006 examination report notes the Veteran's facial numbness was without pain. The October 2006 outpatient records noted the Veteran's complaints of facial pain in cold weather but also noted the Veteran's right-sided numbness was without paralysis. While examiners informed the Veteran it was unlikely his feeling on the right side of his face would return, this evidence shows that the appellant suffers from no more than moderate incomplete paralysis of the seventh cranial nerve. 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8207. Simply put, no more than moderate facial muscle weakness has ever been clinically demonstrated. Hence, an increased rating for this disorder is not in order. Coronary artery disease. Under 38 C.F.R. § 4.104, Diagnostic Code 7005, a 10 percent rating is warranted when a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication required. When a workload 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 30 percent rating is warranted. Id. One MET (metabolic equivalent) 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. 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. 38 C.F.R. § 4.104, Note (2). The July 2005 VA examination report notes the examiner conducted a comprehensive review of the claims file. Among the records noted by the examiner is a private March 2005 report of R.D., M.D., which notes the Veteran had at least a 12-year history of coronary artery disease, which included multiple coronary angioplasties and stents. The VA examiner noted a July 2002 stress test that showed an ejection fraction of 56 percent and a workload of 13.7 METs. The Veteran denied any congestive heart failure and noted he could walk about a 1000 yards without any chest pain, angina, or syncope. An October "2005" (sic) echocardiogram showed an ejection fraction of 60 percent. At his last visit to his private cardiologist, his coronary artery disease was deemed stable. Physical examination in July 2005 revealed a regular heart rhythm and a heart rate of 68. There was no murmur, lifts, heaves, or thrills. The examiner estimated the Veteran's METs as 10 to 12. The results at the July 2005 clinical examination show the Veteran's coronary artery disease to more nearly approximate the assigned 10 percent, as his METs is no less than 10. A METs of less than 7 is required to meet or approximate the next higher rating of 30 percent. Thus, the Board finds the Veteran's coronary artery disease has more nearly approximated the assigned 10 percent throughout the initial rating period. 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7005. Hypertension. Diagnostic Code 7101 provides for a 10 percent rating where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more which requires continuous medication for control. A 20 percent rating may be assigned with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, DC 7101. The July 2005 examination report notes the Veteran's hypertension was uncontrolled at that time. Nonetheless, the medical evidence of record shows it has not met or approximated diastolic pressure of 110 or more or systolic pressure of 200 or more. The examiner at the July 2005 examination recorded the Veteran's blood pressure as 152/73, 153/69, and 153/69. Outpatient records note similar readings. It was 151/76 in August 2006, 152/73 in September 2006, and 125/62 in October 2006. These readings show the Veteran's blood pressure has not met or more nearly approximated the criteria for a rating higher than 10 percent. Thus, the Board finds his hypertension has more nearly approximated the assigned 10 percent rating throughout the initial rating period. 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7101. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to an initial evaluation higher than 10 percent for right-sided facial numbness, without paralysis, associated with stroke residuals between May 5, 2005 and December 26, 2006, is denied. Entitlement to an initial evaluation higher than 10 percent for coronary artery disease between May 5, 2005 and December 26, 2006, is denied. Entitlement to an initial evaluation higher than 10 percent for hypertension between May 5, 2005 and December 26, 2006, is denied. REMAND The Board finds that the appellant's March 2006 notice of disagreement pertaining to the ratings assigned for residuals of a cerebrovascular accident pertained to all such residuals, and not simply some. In this respect, however, the appellant has never been given a statement of the case which includes the rating criteria for evaluating the right lower extremity stroke residuals. While the July 2006 statement of the case did provide criteria for evaluating right upper extremity paralysis under Diagnostic Code 8515, right upper extremity numbness is rated in the most recent rating decision under Diagnostic Code 8713, and the appellant has never been given the rating criteria under that Code. Hence, further development is in order. Additional development is also in order given that there are no clinical records or examination findings dated after December 26, 2006. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Accordingly, this case is REMANDED for the following action: 1. The RO should contact the appellant and request that he identify all health care providers who have treated him for any cerebrovascular accident residuals, coronary artery disease, and/or hypertension. The RO should then secure any pertinent records which have not been previously secured for inclusion in the claims file. All attempts to secure this evidence must be documented in the claims file. With respect to any identified government record if the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, the Veteran should be scheduled for cardiovascular and neurological examinations to determine the nature and extent of any right upper extremity peripheral neuropathy due to a stroke, right lower extremity peripheral neuropathy due to a stroke, right facial numbness, coronary artery disease, and hypertension. The claims file must be made available to the examiners in conjunction with the examinations. The cardiologist is to determine the workload the appellant's heart can perform without dyspnea, fatigue, angina, dizziness or syncope; and provide serial blood pressure readings. The neurologist must carefully explain the nature and extent of any right sided facial numbness, right upper extremity peripheral neuropathy, and right lower extremity peripheral neuropathy. The particular nerves affected by any cranial or peripheral neuropathy due to a cerebrovascular accident must be specifically identified. If any neuropathy is caused by something other than diabetes mellitus or residuals of a stroke that fact must be noted and explained. The examiners are to append a copy of their curriculum vita to the examination report. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 4. If any benefit sought on appeal remains denied, the RO must furnish to the claimant and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs