Citation Nr: 1309056 Decision Date: 03/18/13 Archive Date: 03/25/13 DOCKET NO. 11-33 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for peripheral neuropathy of the right lower extremity. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity. 3. Entitlement to a rating in excess of 60 percent for coronary artery disease. 4. Entitlement to a compensable rating for peripheral vascular disease of the right lower extremity. 5. Entitlement to a compensable rating for peripheral vascular disease of the left lower extremity. 6. Entitlement to an effective date earlier than October 13, 2009 for the grant of service connection (and compensation) for peripheral vascular disease of the right lower extremity. 7. Entitlement to an effective date earlier than October 13, 2009 for the grant of service connection (and compensation) for peripheral vascular disease of the left lower extremity. 8. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: J. Robert Surface, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who retired in November 1976 after 20 years of active duty. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In January 2013 a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. At the hearing the Veteran indicated that he had additional evidence, which was submitted with a waiver of RO consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. At the January 2013 Videoconference Board hearing (prior to the promulgation of a decision in the appeal on the matters) the Veteran indicated that he intended to withdraw his appeals seeking service connection for peripheral neuropathy of both lower extremities, increased ratings for coronary artery disease and for peripheral vascular disease of both lower extremities, and an effective date earlier than October 13, 2009 for the grant of service connection (and compensation) for peripheral vascular disease of both lower extremities; there is no question of fact or law remaining before the Board in the matters. 2. The Veteran's service-connected disabilities include: coronary artery disease, rated 60 percent; residuals of Bell's palsy, rated 10 percent; hypertension, rated 10 percent; and peripheral vascular disease of both lower extremities, rated 0 percent each; the combined rating for the service connected disabilities is 70 percent. 3. The Veteran's service-connected disabilities are reasonably shown to be of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his educational and occupational background. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the appellant have been met; the Board has no further jurisdiction in the matters of service connection for peripheral neuropathy of both lower extremities, increased ratings for coronary artery disease, and peripheral vascular disease of both lower extremities, and an effective date earlier than October 13, 2009 for the grant of service connection (and compensation) for peripheral vascular disease of both lower extremities. 38 U.S.C.A. §§ 7104(a), 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). 2. The schedular criteria for a TDIU rating are met, a TDIU rating is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims. However, given the appellant's expression of intent to withdraw his appeals in the matters of service connection for peripheral neuropathy of both extremities, increased ratings for coronary artery, and for peripheral vascular disease of both lower extremities, and an effective date earlier than October 13, 2009 for the grant of service connection (and compensation) for peripheral vascular disease of both lower extremities, further discussion of the impact of the VCAA on these matters is not necessary. As this decision grants the Veteran a TDIU rating, there is no reason to belabor the impact of the VCAA on such matter; any notice defect or duty to assist omission is harmless. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis 1. Dismissals The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made in writing or on the record at a hearing by the appellant or by his authorized representative. 38 C.F.R. § 20.204. At the January 2013 Videoconference Board hearing, the Veteran expressed on the record his intent to withdraw his appeals in the matters of service connection for peripheral neuropathy of both lower extremities, increased ratings for coronary artery disease and for peripheral vascular disease of both lower extremities, and an effective date earlier than October 13, 2009 for the grant of service connection (and compensation) for peripheral vascular disease of both lower extremities. Inasmuch as he has withdrawn his appeals in these matters, there is no allegation of error of fact or law in the matters remaining before the Board. Hence, the Board does not have jurisdiction to consider appeals in the matters, and such appeals must be dismissed. 2. TDIU The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. (The Virtual VA file does not contain any evidence pertinent to the matter at hand.) Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining or maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a) . In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) The Veteran has the following service connected disabilities: coronary artery disease post coronary artery bypass graft, rated 60 percent; residuals of Bell's palsy, rated 10 percent; hypertension, rated 10 percent; and peripheral vascular disease of both lower extremities associated with coronary artery disease post coronary artery bypass graft, rated 0 percent each; the combined rating for the service connected disabilities is 70 percent. Therefore, the 38 C.F.R. § 4.16(a) schedular rating criteria for TDIU are met. What remains to be determined is whether the Veteran's service-connected disabilities are of such nature and severity as to preclude him from engaging in substantially gainful employment consistent with his education and occupational background. On February 2009 VA examination for the heart, the Veteran reported that he had coronary artery disease diagnosed in the early 1990's and subsequently had coronary artery bypass grafting of four vessels. He reported that after multiple heart catheterizations, he required stent placement of six vessels. He stated that he also had cardiac arrhythmia, and had a pacemaker inserted. He stated that he experiences dyspnea with exertion and swelling of his lower extremities. He reported that he has chest pain daily that typically occurs with exertion. The pain may last for two to ten minutes and is relieved with nitroglycerin, but on occasion it requires two sublingual tablets for relief. He has hypertension which started in the 1980's. He also reported having dyslipidemia and takes medication for it. His best subjective estimation of METs [metabolic equivalents] was less than 3. He stated that if he does any light yard work, painting or light carpentry, he experiences shortness of breath and chest pain. He reported that he experiences leg pain with any walking. He has neuropathy of the lower extremities and is unable to complete an exercise tolerance test secondary to such disability. He was self-employed until November 2007, but had to retire following the insertion of a pacemaker. He believed his heart disability affects his activities of daily living in that he experiences shortness of breath and frequent chest pain. On physical examination an exercise tolerance test was contraindicated as the Veteran experienced shortness of breath and chest pain with exertion and also experienced neuropathy of the lower extremities bilaterally, limiting his ability to walk for long distances. The diagnoses were coronary artery disease with subsequent coronary artery bypass grafting and stents, and hypertension on medication. The examiner noted that the Veteran had peripheral neuropathy which limits his exercise tolerance. On March 2010 VA examination for peripheral nerves, the Veteran reported that he has peripheral vascular disease diagnosed by his private cardiologist. He can walk comfortably about 30 minutes and afterwards experiences numbness, weakness, and cramps in his legs. He reported that he stopped working in 2007 when he had a pacemaker inserted. Regarding his activities of daily living, he stated that he cannot do too much because of his ambulation and disabilities. On physical examination he could walk well short distances. Deep tendon reflexes were zero in both knees and both ankles. Sensory examination was equivocal. The impression was the symptoms of the lower extremities are mostly due to claudication or vascular insufficiency in the lower extremities. The examiner noted that he believed that the Veteran had mild sensory polyneuropathy in both legs. On June 2010 VA peripheral nerves examination, the examiner opined that the Veteran does have a diagnosis of peripheral neuropathy and also a diagnosis of peripheral vascular disease. He noted that based on the review of the claims file, the Veteran's peripheral vascular disease is likely related to his cardiovascular complications and hypertensive heart disease. On June 2010 VA examination for arteries, veins and miscellaneous, the Veteran reported a history of peripheral neuropathy and numbness in his feet in the 1990's. He reported claudication symptoms after walking about 20 to 30 minutes and an increased sense of numbness and pain in the bilateral lower extremities, left greater than right. He had a nerve conduction study performed 5 years ago which was significant for sensory neuropathy. He stated that he is retired and his activities of daily living are affected by his peripheral neuropathy because prolonged walking or standing is very uncomfortable. The diagnoses were bilateral lower extremity peripheral neuropathy, right mid-superficial femoral artery stenosis 50 to 99 percent, and left distal superficial femoral artery stenosis 50 to 99 percent. On October 2010 VA general medical examination, the examiner was asked to render an opinion as to whether the Veteran's service-connected disabilities render him unable to secure and maintain substantially gainful employment. The examiner noted review of the claims file. The Veteran reported that he last worked as an exterminator from 1984 to 2007 (23 years). He stated that his doctor told him to stop working following placement of a pacemaker. After discharge from the military in 1976, he worked in civil service (as a booster pump operator) for 7 to 8 years. It was noted that the Veteran has service-connected residuals of Bell's palsy. He reported that his basic activities of daily living are unaffected by that disability. He stated that he had coronary artery disease diagnosed in the early 1990's, and had had a total of 10 stents placed, the last in 2005. He stated that he had hypertension diagnosed in the 1970's and has been treated with medications for many years; some of the medications make him drowsy and sleepy. His activities of daily living are affected by his heart disease in that it precludes any substantial physical exertion. The diagnoses were coronary artery disease status post coronary artery bypass graft and multiple stents, hypertension, and residual crocodile tears and excess tearing status post Bell's palsy involving the right eye. The examiner opined that the Veteran's service-connected disabilities at least as likely as not preclude him from doing most types of physical employment. He noted that the Veteran's cardiac disease is severe enough to limit his ability to do most physically demanding jobs; but it is less likely than not that his service-connected disabilities would preclude him from performing sedentary employment. He stated that even in the face of the Veteran's service-connected disabilities, he does not know that they are severe enough to completely deem the Veteran unemployable, particularly from the sedentary standpoint. A January 2012 hospital report shows the Veteran underwent his 13th left heart catheterization with a stent. In an August 2012 letter the Veteran's treating physician, Dr. Parker, noted that the Veteran had been under his cardiovascular care for approximately 20 years. He has severe multi-vessel coronary artery disease and has had prior coronary artery bypass graft surgery and multiple prior percutaneous coronary interventions. He also has sick sinus syndrome with permanent pacemaker. His other cardiovascular issues include hypertension and dyslipidemia along with peripheral vascular disease. Dr. Parker opined that the Veteran should be 100 percent disabled from the cardiovascular standpoint. In an undated private vocational assessment (received at the Board in January 2013) it was noted that the Veteran suffers from severe cardiovascular as well as peripheral vascular disease. The examiner noted that the Veteran's treating physician, Dr. Parker, had opined that the Veteran is 100 percent disabled from his cardiac disease. The vocational evaluator stated that based on the medical evidence, a TDIU rating would certainly be consistent with the Veteran's treating physician, which is typically given controlling weight in disability decisions. He concluded that the Veteran is unable to perform any type of work at any exertional level and should be considered totally unemployable. At his January 2013 videoconference hearing, the Veteran testified that his cardiac disability has worsened in the past 12 to 18 months in that he was hospitalized in January 2012 to have two additional stents placed. He stated that he receives cardiovascular treatment currently from his private physician, Dr. Parker. The Veteran testified that he had been gainfully employed all of his life. He had been an entrepreneur. He stated that he is now unable to work at all because he cannot walk any distance and cannot sit still for any length of time. He stated that he walks with a cane and if he exerts himself, he must stop due to chest pain. He stated that he keeps nitroglycerin at hand for chest pain. He stated that his other disabilities are kidney cancer, peripheral vascular disease, and neuropathy. He indicated that his kidney disease is due to his heart disability and his blood pressure problems. He stated that he is totally unemployable. It is not in dispute that due to his cardiovascular disabilities (coronary artery disease, hypertension and peripheral vascular disease of the lower extremities) the Veteran is precluded from the types of employment that are strenuous, i.e., require exertional activities or prolonged standing or walking. What remains to be determined is whether the service-connected disabilities also preclude his participation in sedentary employment consistent with his education and occupational experience. There is conflicting evidence in the record on that point. The October 2010 VA examiner opined that the Veteran's cardiac disease was severe enough to limit his ability to do most physically demanding jobs, but found it was less likely than not that his service-connected disabilities precluded him from performing some form of sedentary employment. In considering the Veteran's service-connected disabilities, the examiner noted that he did not know that the Veteran's service-connected disabilities are severe enough to completely deem him unemployable, particularly from the sedentary standpoint. On the other hand, the more recent, August 2012 letter from the Veteran's private treating physician indicates that the Veteran is 100 percent disabled from his cardiovascular disabilities. In addition, a vocational evaluator has concluded that the Veteran is unable to engage in any type of work at any exertional level and should be considered totally unemployable. The Board notes that the Veteran's documented work experience (23 years as an exterminator and 7 to 8 years as a booster pump operator) has involved exertional activity at varying levels. While the evidence shows he had some educational training at a vocational technical school, it does not show he acquired any skills or training that would enable him to participate in strictly non-exertional (sedentary)-type employment. Accordingly (and discounting the effects of the Veteran's non-service connected disabilities, his age, and the state of the economy, none of which may be considered), the Board finds that the Veteran is reasonably shown, by virtue of his service-connected disabilities alone, to be precluded from participating in any regular substantially gainful employment consistent with his education and occupational experience. Resolving any remaining reasonable doubt in his favor, as the law requires (see 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102), the Board concludes that a TDIU rating is warranted. ORDER The appeals seeking service connection for peripheral neuropathy of both lower extremities, increased ratings for coronary artery disease and peripheral vascular disease of both lower extremities, and an effective date earlier than October 13, 2009 for the grant of service connection (and compensation) for peripheral vascular disease of both lower extremities are dismissed. A TDIU rating is granted, subject to the regulations governing payment of monetary awards. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs