Citation Nr: 1339644 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 10-35 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for service-connected diabetes mellitus for accrued benefits purposes. 2. Entitlement to service connection for non-ischemic dilated cardiomyopathy with congestive heart failure associated with herbicide exposure for accrued benefit purposes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran died on June [redacted], 2007. 2. At the time of his death, the Veteran had a pending claim for entitlement to service connection for diabetes mellitus. 3. The appellant is the Veteran's surviving spouse, who requested accrued benefits within one year of the date of his death. 4. Management of the Veteran's service-connected diabetes mellitus required insulin; however, it did not also require restricted diet and regulation of activities. The medical evidence does not establish that the Veteran had complications of diabetes that would warrant a separate rating. 5. The Veteran did not have ischemic heart disease. 6. The Veteran's non-ischemic dilated cardiomyopathy with congestive heart failure was not causally or etiologically related to his period of active service, nor to his service-connected diabetes. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for diabetes mellitus for accrued benefit purposes, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, DC 7913 (2013). 2. The criteria for service connection for non-ischemic dilated cardiomyopathy with congestive heart failure for accrued benefit purposes have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claim Periodic monetary benefits (other than insurance and servicemen's indemnity) to which an individual was entitled at death under existing ratings or decisions and under laws administered by the VA Secretary, or those based on evidence in the file at date of death and due and unpaid for a period not to exceed two years, shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. See 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2013). A claim for such benefits must be filed within one year of the Veteran's death. See 38 C.F.R. § 3.1000 (c) (2013). In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit concluded that, for a surviving spouse to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." The Federal Circuit has also indicated that an accrued benefits claim is, under the law, derivative of, and separate from, the Veteran's claims. Zevalkink v. Brown, 6 Vet. App. 483, 489-490 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). In short, "the main thrust of the statute is to pay benefits that were 'due and unpaid' to the veteran based on 'existing ratings or decisions.'" Id. Thus, in the adjudication of a claim for accrued benefits, the appellant is bound by the same legal requirements to which the Veteran would have been bound had he survived to have his claims finally decided. Here, the Veteran died in June 2007. At the time of his death, the Veteran had a pending claim of entitlement to service connection for diabetes mellitus. The appellant filed a claim for entitlement to service connection for the Veteran's death in July 2007, which would include a claim for accrued benefits. Service connection for the cause of the Veteran's death was granted in a 2008 decision. However, since the appellant filed a claim for accrued benefits within one year of the Veteran's death, these claims remain pending. As such, the Board will consider whether the appellant is entitled to an initial disability evaluation in excess of 20 percent for the his diabetes mellitus for accrued benefits purposes based on the evidence of record at the time of the Veteran's death in June 2007. See 38 C.F.R. § 3.1000 (2013). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Moreover, if the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. As described, the Veteran's service-connected diabetes mellitus is rated under DC 7913 with a 20 percent rating, effective August 4, 2008. Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet, is rated 20 percent disabling. C.F.R. § 4.119. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities, is rated 40 percent disabling. Id. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, is rated 60 percent disabling. Id. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated, is rated 100 percent disabling. Id. The rating schedule in Note 1 also instructs to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process. Id. Turning to the evidentiary record, the Veteran was diagnosed with new onset diabetes in November 2006 upon discharge from Willis-Knighton Medical Center (Willis-Knighton). The Veteran was prescribed insulin, but there is no indication in the record that his medical providers required restricted diet or regulation of activities at that time. Subsequent medical records from Willis-Knighton from June 2007 described the Veteran's condition as non-insulin dependent diabetes mellitus. A review of treatment records from the Shreveport VA Medical Center (VAMC) from December 2006 to February 2007 also show that the Veteran's symptoms were managed by taking Glipizide, a tablet, for his diabetes, and not insulin. The evidentiary record, both in the private treatment records and VA treatment record, does not indicate any time in which the Veteran's diabetes mellitus was managed by restricted diet or regulation of activities. Therefore, a review of the evidence shows that the Veteran was at one point treated with insulin to manage his diabetes; however, he was subsequently prescribed an oral hypoglycemic agent. Moreover, since being diagnosed with diabetes mellitus in November 2006 until his passing in June 2007, the Veteran did not manage his diabetes mellitus symptoms by either a restricted diet or regulation of activity. It is important for the appellant to understand that in order to receive the next highest rating of 40 percent for type II diabetes mellitus, the evidence must show that the Veteran required insulin, restricted diet, and regulation of activities to manage his condition (emphasis added). Unfortunately, the evidence does not show that all three of these conditions were necessary to manage the Veteran's diabetes mellitus at any time prior to his death. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim for entitlement to an initial disability rating greater than 20 percent for diabetes mellitus. Consequently, the benefit-of-the-doubt doctrine does not apply, and the rating claim must be denied on a schedular basis. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3, 4.7; Gilbert, 1 Vet. App. at 49. With regard to the Veteran's hypertension and renal failure, the claims file was reviewed by a VA examiner in September 2010. The examiner found that neither of these conditions were due to or the result of the Veteran's diabetes mellitus. The examiner indicated that a review of the records showed the Veteran's diabetes mellitus appeared to be steroid induced, and there was a strong family history of diabetes. Moreover, the examiner stated that the Veteran's conditions were treated "well before" his diabetes mellitus was diagnosed in November 2006, and it was unlikely that his diabetes mellitus would have contributed to his hypertension or renal failure in the short time prior to his death in June 2007. Thus, the examiner provided a conclusion with a supportive rationale, and the September 2010 VA medical opinion is therefore probative. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). Because a medical expert found that the Veteran's hypertension and renal failure were not due to the Veteran's diabetes mellitus, the Board does not find it appropriate to rate these two conditions as complications of diabetes mellitus. Moreover, the Board finds no other diagnostic codes would be appropriate to evaluate the Veteran's type II diabetes mellitus. See Schafrath, 1 Vet. App. at 595. Finally, the Board has considered whether an extraschedular evaluation is warranted under 38 C.F.R. § 3.321(b). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the Board finds that the scheduler rating criteria adequately contemplate and describe the symptoms and impairment caused by the Veteran's service-connected diabetes mellitus, such as the need for insulin, as found at 38 C.F.R. § 4.119. Therefore, the first prong of Thun is not satisfied and the Board declines to remand this issue for referral for extraschedular consideration. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a)(2013). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101 , 1112, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Moreover, a veteran who served in the Republic of Vietnam during the Vietnam War is presumed to have been exposed to an herbicide agent, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). "Service in the Republic of Vietnam" includes service in the waters offshore and in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. In Haas v. Peake, 525 F.3d 1168, 1187-1190 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) confirmed VA's interpretation of 38 C.F.R. § 3.307(a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption. Furthermore, the Federal Circuit in Haas held that "service in Vietnam" will not be presumed based upon the Veteran's receipt of a Vietnam Service Medal (VSM). Id. By way of background, the Veteran had initially filed a claim for entitlement to service connection for congestive heart failure in January 2005, which was denied by the RO. However, the Veteran's file was subsequently referred for a special review pursuant to the decision in Nehmer v. U.S. Department of Veterans Affairs, F. Supp. 1404, 1409 (N.D. Cal. 1989), which requires the payment of retroactive benefits to certain Nehmer class members. The Veteran was identified as a potential Nehmer class member based on the addition of ischemic heart disease to the list of presumptive diseases associated with exposure to certain herbicide agents used in Vietnam. See 75 Fed. Reg. 53,202 (2010). In a September 2011 rating decision, however, the RO denied service connection for non-ischemic dilated cardiomyopathy with congestive heart failure, and the appellant has continued the appeal. The Veteran underwent a cardiac catheterization on April 18, 1999 at Willis-Knighton, which resulted in a diagnosis of non-ischemic dilated cardiomyopathy with severely reduced ejection fraction of 25 percent. The Veteran denied any history of congestive heart failure, ischemic heart disease, or valvular heart disease at that time. The Veteran was also diagnosed with congestive heart failure at Willis-Knighton. Similarly, August 1999 treatment records from the Shreveport VA VAMC show the Veteran was diagnosed with dilated cardiomyopathy, non-ischemic, with an ejection fraction of 25 percent. September 2006 records also note the Veteran had a history of congestive heart failure. Based on the diagnoses of both non-ischemic dilated cardiomyopathy and congestive heart failure during the Veteran's lifetime, a VA medical opinion was requested in April 2011 to address whether the Veteran's non-ischemic dilated cardiomyopathy with congestive heart failure was considered an ischemic heart disease. The examiner reviewed the claims file and found there was no evidence of ischemic heart disease. The examiner opined that the Veteran's non-ischemic dilated cardiomyopathy with congestive heart failure was not caused by or the result of ischemic heart disease. Instead, the examiner indicated the condition was likely alcohol and hypertension related. The VA examiner based the aforementioned conclusion on a review of the claims file as well as a review of the Veteran's documented and reported history. The examiner provided a conclusion with a supportive rationale, and the April 2011 VA medical opinion is therefore probative. See Nieves -Rodriguez, 22 Vet. App. at 295. A review of the private and VA treatment records indicates there are no other diagnoses for the Veteran's cardiovascular conditions. As such, the competent medical evidence of record is against a finding that the Veteran had ischemic heart disease during his lifetime, and, because non-ischemic heart disease is not listed among the disorders for which a presumption based on herbicide exposure is warranted under 38 C.F.R. § 3.309(e), the Board finds the Veteran was not entitled to service connection under the provisions of the law regarding diseases due to herbicide exposure. Similarly, entitlement to service connection based on the manifestation of a chronic disease, as established under 38 C.F.R. § 3.303(b), is not warranted. As described above, the Veteran's non-ischemic dilated cardiomyopathy with congestive heart failure was first diagnosed in approximately 1999, over thirty years after he separated from service. As such, the Veteran's non-ischemic dilated cardiomyopathy with congestive heart failure did not manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.303, 3.307, 3.309. Moreover, continuous symptoms since separation have not been established for the Veteran's non-ischemic dilated cardiomyopathy with congestive heart failure. The Board finds that the Veteran's statements regarding the history of his symptoms are outweighed by other, more probative evidence of record. First, the Veteran's June 1969 separation examination report reflects that his heart was found to be clinically normal. A negative cardio test and normal chest x-ray were also noted. Although the Veteran reported shortness of breath, he denied pain or pressure in chest, palpation or pounding heart, and high or low blood pressure. Moreover, the examiner noted that such shortness of breath occurred upon exertion with "no sequelae," and the Veteran's lungs and chest were found to be normal. In short, the Veteran's in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board also notes the gap of approximately thirty years between the Veteran's discharge from active duty service in 1969 and his initial reported symptoms of a heart disability in 1999. Such a prolonged period without medical complaint after service can be considered, among other factors, in the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, when the Veteran was diagnosed with non-ischemic dilated cardiomyopathy in April 1999 at Willis-Knighton, he reported a three to four day history of tightness in his chest. He denied any prior history of congestive heart failure, ischemic heart disease, valvular disease, or any angina pectoris type symptoms. Such histories reported by the Veteran for treatment purposes are of more probative value than more recent assertions and histories given for VA disability compensation purposes. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Here, the Veteran's 1999 statements tend to weigh against a finding of continuous symptoms since discharge for the Veteran's service connected non-ischemic dilated cardiomyopathy with congestive heart failure as the Veteran himself denied a history of these conditions and only indicated chest pain of less than one week in duration. After 1999, the Veteran sought treatment in 2002 for a frank syncope of undetermined etiology. The Veteran was released from Willis-Knighton with a diagnosis of non-ischemic dilated cardiomyopathy, possibly due to hypertension and heavy alcohol consumption. Subsequently, from 2004 until his death in 2007, the Veteran periodically received treatment for his cardiovascular condition at Willis-Knighton. A pacemaker was inserted and remained in place in 2007. In terms of VA treatment, the Veteran continued to report his diagnosis of congestive heart failure, but treatment reports indicate he predominately received treatment at Willis-Knighton. Thus, the evidence shows that the Veteran's symptoms of non-ischemic dilated cardiomyopathy with congestive heart failure have not been continuous since separation. As such, the Board finds that a preponderance of the evidence is against the claim for this issue on a presumptive basis as due to a chronic disease. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The Board now considers whether service connection is warranted for the Veteran's non-ischemic dilated cardiomyopathy with congestive heart failure on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). As described, the Veteran's service treatment records show no complaints, diagnosis or treatment for non-ischemic dilated cardiomyopathy with congestive heart failure or any cardiovascular disease. The Veteran's heart was normal at the June 1969 separation examination, and even though the Veteran reported shortness of breath, upon physical examination, his lungs and chest were also found to be clinically normal. The Board acknowledges the appellant's contention in her March 2013 VA Form 9 that the Veteran died from complications of service-connected disabilities, including heart disease. However, in the present appeal, the cause of the Veteran's death is not at issue. Instead, the present appeal must address whether service-connection was warranted for the Veteran's cardiovascular disability. Unfortunately, while the evidence clearly shows that the Veteran experienced ischemic dilated cardiomyopathy with congestive heart failure leading up to the time of his death in June 2007, the evidence does not indicate that the Veteran's cardiovascular disability was the result of an in-service injury or event. Therefore, the Board finds that service connection for the Veteran's non-ischemic dilated cardiomyopathy with congestive heart failure on a direct basis is not warranted. In addition, the claims file was submitted to a VA examiner for review in January 2008 to address whether the Veteran's congestive heart failure was due to his diabetes mellitus. The examiner opined that it was not at least as likely as not that the Veteran's congestive heart was due to his diabetes mellitus, explaining that the Veteran's heart condition preceded his diabetes mellitus. Based on this supportive rationale, the Board finds the January 2008 opinion probative. See Nieves -Rodriguez, 22 Vet. App. at 295. Therefore, service connection cannot be granted on a secondary basis. Accordingly, the Board finds that a preponderance of the evidence is against the appellant's service connection claim, and it must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013); Gilbert, 1 Vet. App. at 49. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present appeal, the VCAA duty to notify was satisfied by a December 2010 letter. With regard to the increased rating claim, where service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Regarding the duty to assist, the Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the evidence of record includes the Veteran's service treatment records, statements in support of the claim by the appellant and her representative, VA treatment records, and private medical records. Moreover, as discussed above, accrued benefits claims must be adjudicated based on the evidence of record at the time of death. See Ralston v. West, 13 Vet. App. 108, 113 (1999). Therefore, the Board finds that all necessary development has been accomplished, and appellate review may proceed without prejudice to the appellant. See Barnard v. Brown, 4 Vet. App. 384 (1999). ORDER An initial rating in excess of 20 percent for service-connected diabetes mellitus for accrued benefit purposes, is denied. Entitlement to service connection for non-ischemic dilated cardiomyopathy with congestive heart failure associated with herbicide exposure for accrued benefit purposes, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs