Citation Nr: 1757766 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 07-30 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a heart disorder, to include left ventricular hypertrophy and palpitations. 2. Entitlement to an initial disability rating in excess of 10 percent for varicose veins of the right lower extremity prior to January 20, 2011, and in excess of 20 percent thereafter. 3. Entitlement to an initial compensable disability rating for hypogonadism. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to January 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In an October 2017 rating decision, the Appeals Management Center (AMC) granted an increased 20 percent disability rating for the Veteran's varicose veins of the right lower extremity, effective from January 20, 2011. As this was not a full grant of the benefit sought on appeal, and the Veteran did not indicate that he agreed with the increased rating, his claim has remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In March 2011, February 2014, and most recently in January 2017, the Board remanded the claim for further development. There was substantial compliance with the Board's remand directives to decide the claim on appeal. See Stegall v. West, 11 Vet. App. 268 (1998); Dement v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a heart disorder and symptoms of a heart disorder were not continuous since service separation. 2. The Veteran's varicose veins of the right lower extremity did not manifest with persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema prior to June 3, 2010. 3. The Veteran's varicose veins of the right lower extremity manifested in persistent edema, which was incompletely relieved by elevation or extremity, since June 3, 2010, however, has not been manifested by persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration since that time. 4. The Veteran's hypogonadism is not manifest by a deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder, to include left ventricular hypertrophy and palpitations, have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for an initial disability rating in excess of 10 percent for varicose veins of the right lower extremity prior to June 3, 2010, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code (DC) 7120 (2017). 3. The criteria for an increased 20 percent disability rating, but no higher, for varicose veins of the right lower extremity from June 3, 2010, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.104, DC 7120 (2017). 4. The criteria for an initial compensable disability rating for hypogonadism have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.115b DC 7522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a March 2016 statement and a November 2016 statement through his representative, the Veteran asserted that he did not receive notification from the agency of original jurisdiction (AOJ) regarding any VA examinations. Further, he stated that the AOJ issued a supplemental statement of the case (SSOC) without providing the Veteran VA examinations. The Veteran has since been afforded VA examinations for the issues on appeal and has waived AOJ review of the evidence. Neither the Veteran nor the representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). VA has satisfied its duties to notify and assist and the Board may proceed with appellate review. Service Connection - Heart Disorder Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, service connection may also be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes. Cardiovascular-renal disease are chronic conditions listed under 38 C.F.R. § 3.309(a); and thus, 38 C.F.R. § 3.303(b) is applicable. See 38 U.S.C. § 1101; see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established based upon a legal presumption by showing that a disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.307, 3.309(a). Moreover, presumptive service connection does not apply to claims predicated on ACDUTRA and INACDUTRA service, only instead active duty. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); Smith v. Shinseki, 24 Vet. App. 40 (2010). In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 311. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran asserts that service connection for a heart disorder is warranted because it was incurred during service or otherwise related to service. In a June 2007 statement, the Veteran asserted that he suffered from erratic heartbeats, chest pains, shortness of breath, angina and fatigue. In a November 2017 statement through his representative, the Veteran reported that left ventricular hypertrophy and mild left ventricular hypertrophy were shown in March 2004 and September 2006 while on active duty. After a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding of a current diagnosis for a heart disorder. Therefore, service connection for a heart disorder is not warranted. The reasons follow. The Veteran was afforded a VA examination in March 2017. The VA examiner indicated in his report that the Veteran's current echocardiogram, performed March 3, 2017, did not show any left ventricular hypertrophy. Wall motion and wall thickness were noted to be normal. Diagnostic testing was negative for any evidence of cardiac hypertrophy and cardiac dilatation. The examiner noted borderline left ventricular hypertrophy shown by an echocardiogram in March 2004 and mild left ventricular hypertrophy shown by another echocardiogram in September 2006. He indicated that the Veteran's heart condition did not qualify within the generally accepted medical definition of ischemic heart disease and does not require continuous medication. The examiner specifically found that the Veteran did not have a myocardial infraction; congestive heart failure; cardiac arrhythmia; a heart valve condition; any infectious cardiac conditions; pericardial adhesions, any surgical procedures for treatment of a heart condition; or any other hospitalizations for treatment of a heart condition. A VA medical opinion for sleep apnea was also provided in November 2015. The VA examiner addressed the March 2004 Cardiology consultation that showed the Veteran's complaints of palpitations and a sensation of an irregular heartbeat. The examiner indicated that a Holter monitor was placed and an echocardiogram was performed to clarify the nature of the Veteran's rhythm disturbance. He stated that the Holter monitor included minimum heart rate of 40 beats per minute during sleep, which represented significant sinus bradycardia. The examiner found that no significant ectopy or pathologic arrhythmia was identified but one possibility to consider for the Veteran's profound bradycardia during sleep was possible sleep apnea and significant hypoxemia. The Veteran was subsequently diagnosed with severe obstructive sleep apnea in a November 2007 sleep study. A March 2011 private medical record reflects regular heart rhythm, no murmurs, and normal heart sounds upon physical examination. In a November 2015 private medical record, the physician noted that heart size was normal, the Veteran had clear lungs and, there was no effusion. In the October 2006 VA examination report, the examiner noted that the Veteran's echocardiogram showed wall thickening and weak valve. The Veteran reported that due to his heart condition, he experienced angina, shortness of breath and fatigue; and had symptoms of erratic heart beat and chest pain. However, the Veteran's ability to perform daily functions during flare-ups was not changed and he did not experience congestive heart failure. The Veteran was not receiving treatment and there was no functional impairment resulting from the findings of the echocardiogram. Upon physical examination, the examiner found no heaves or thrills; a regular sinus rhythm; and no murmurs or gallops. The examiner specifically noted that an examination of the heart did not reveal any evidence of congestive heart failure, cardiomegaly, or cor palmonale. The examiner indicated left ventricular hypertrophy; subjective factors of a history of hypertrophy on echocardiogram, and that there were no objective factors. As mentioned above, an echocardiogram was performed in March 2004. The physician's overall assessment was a relatively unremarkable resting transthoracic echocardiogram, with only borderline left ventricular hypertrophy with no segmental wall motion abnormalities and trace to mild tricuspid regurgitation noted. Further, he indicated no other significant structural or functional abnormalities were identified. The Veteran was noted to have a normal left ventricle size with normal left ventricle systolic function. The cardiac Holter monitor examination performed in March 2004 revealed no significant ectopy or pathologic arrhythmia but the physician stated one possibility to consider for the Veteran's profound bradycardia during sleep is possible sleep apnea and significant hypoxemia. An echocardiogram performed in October (September) 2006 was considered to be borderline abnormal with mild left ventricular hypertrophy, however, the physician also noted normal chamber sizes, normal left ventricular systolic and diastolic function; normal valves and Doppler examination; and no evidence for pericardial effusion. The Veteran has accurately reported that echocardiograms performed in March 2004 and October (September) 2006 revealed left ventricular hypertrophy, however subsequent medical evidence, as discussed above, show that the symptoms were not continuous since service separation and that the Veteran does not currently have a heart disorder. The March 2013 VA examiner specially addressed the March 2004 and October (September) 2006 echocardiograms in his report although finding that the Veteran currently did not show any left ventricular hypertrophy following an echocardiogram study. This finding is supported by a VA examiner in November 2015, who attributed the Veteran's March 2004 complaints of palpitation and irregular heartbeat, which represented significant sinus bradycardia, to sleep apnea. Medical records following the Veteran's November 2007 diagnosis of sleep apnea are absent for any diagnosis of a heart disorder. In a November 2008 statement, the Veteran himself indicated that he had sleep apnea which contributed to his erratic heart beats, massive weight gain, and constant tiredness. It should be noted that the Veteran is in receipt of service connection for sleep apnea, effective November 14, 2008. Further, although the left ventricular hypertrophy was indicated following the March 2004 and October (September) 2006 echocardiograms, functionality of the heart was otherwise determined to be relatively unaffected. The Board finds the Veteran to be competent and credible in reporting observable symptomatology. See Layno, 6 Vet. App. 223, 225; Barr, 21 Vet. App. at 311. However, lay assertions do not constitute a competent clinical diagnosis of a current heart disorder. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Veteran's lay assertions cannot constitute competent medical evidence in support of a current diagnosis. The Board finds of more probative value the medical opinions and findings provided by the VA examiners. The VA medical opinions provide competent and probative evidence that weigh against the Veteran's claim because the VA examiners collectively reviewed the claims file, interviewed the Veteran, performed appropriate examination and studies, and provided medical opinions supported by well-reasoned rationale. Monzingo, 26 Vet. App. at 105-06. In the absence of a current diagnosis for a heart disorder, service connection cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223 (1992) As the preponderance of the evidence is against the claim of service connection for a heart disorder, to include left ventricular hypertrophy and palpitations, the benefit-of-the-doubt doctrine is not for application, and the claim is be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased Ratings - Generally Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2017). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3. The Rating Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2017). In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Increased Rating - Varicose Veins Varicose veins are rated under DC 7120. Varicose veins with intermittent edema of extremity or aching and fatigue in leg after prolonged standing or walking, with symptoms relieved by elevation of extremity or compression hosiery warrant a 10 percent disability rating. Varicose veins with persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, warrant a 20 percent disability rating. A 40 percent disability rating is warranted for varicose veins with persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. Varicose veins with persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration warrant a 60 percent disability rating. Finally, a maximum schedular disability rating of 100 percent is warranted for varicose veins with massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, DC 7120. The Veteran contends that his varicose veins of the right lower extremity warrants an initial rating in excess of 10 percent prior to January 20, 2011, and should be rated higher than the currently-assigned disability rating of 20 percent under 38 C.F.R. § 4.104, DC 7120. In a June 2007 notice of disagreement, the Veteran asserted that his varicose veins required the use of compression hosiery to prevent constant blood pooling in the lower extremities of his right leg and around the knee cap area. He further reported that since his diagnosis, his right leg tired faster and prevented him from sitting or standing for extensive periods of time. He added he had to elevate his leg at a 45 degree angle at rest to help alleviate the pain and contended that a higher rating of at least 20 percent is warranted. The Veteran made similar statements in November 2008 and added that he had vascular surgery performed in September 2004 for his varicose veins. He reported that radiofrequency was used to shrink the "bad vein" and that it had leaking valves. In a March 2009 statement, the Veteran indicated that since his last operation, his leg has gotten worse with blood pooling in the lower extremities and that he is unable to sit or stand for a long period of time. He offered a letter from his private doctor in support of his statement, which is discussed below. In a September 2006 VA examination, the Veteran reported that he has leg pain at rest, leg edema occurring constantly which was not relieved by foot elevation or compression hosiery. He also reported dark pigmentation of the skin and that he was not receiving any treatment for his condition. The Veteran indicated that functional impairment of his varicose veins was difficulty standing for long periods of time. Upon a physical examination, the examiner indicated the extremities showed no ulceration, edema, stasis dermatitis, clubbing, or cyanosis. The examiner noted that varicose veins were present on the right side and specifically that there was no ulcer, edema, elevated edema, stasis pigmentation, or eczema. In a March 2009 letter, the Veteran's private doctor stated that the Veteran suffered from severe varicose veins in his lower extremities which are exacerbated by prolonged standing or sitting. In a March 2016 letter, the Veteran's private doctor indicated that she had been treating the Veteran since March 9, 2012. She stated that the Veteran underwent a procedure in June 2010 for his right leg and persisted with venous insufficient of both lower extremities with throbbing pain and leg edema despite the procedures with the right lower extremity worse than the left. Further, she indicated that pain and edema have not responded to the use of compression stockings and it was difficult for him to sit for any prolonged period of time or walk for short distances. In support of the letter from the Veteran's private doctor's March 2016 statement is a June 3, 2010 medical record which reflects that procedure a was performed on the right leg, specifically, a laser of anterior accessory saphenous vein. The Board finds that the preponderance of the evidence is against a finding that prior to June 3, 2010, the date of the procedure, the Veteran's varicose veins of the right leg exhibited at least persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, to warrant an increased 20 percent rating. While the Veteran stated during the September 2006 VA examination that he experienced leg edema occurring constantly which was not relieved by foot elevation or compression hosiery and had dark pigmentation, this was based on his own subjective report. The Veteran also reported no treatment and upon an examination of the right lower extremity, the examiner found no ulcer, edema, elevated edema, stasis pigmentation, or eczema. The Veteran's private doctor in a March 2009 letter stated that the Veteran's varicose veins were exacerbated by prolonged standing or sitting. A November 2009 private medical record reflects a prescription of a thigh-high compression hose and instructions to wear the compression hose on a daily basis. Therefore, prior to June 3, 2010, the Veteran's symptoms more closely reflect the assigned 10 percent rating. Affording the Veteran the benefit of the doubt, the March 2016 letter from the Veteran's private doctor and the June 3, 2010 private medical record reflecting a laser procedure supports a finding of an increased 20 percent rating, effective June 3, 2010. However, the preponderance of the evidence is against a finding that the Veteran experienced persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration since June 3, 2010, to warrant an increased 40 percent rating. A July 2017 VA examination reveals that the Veteran had no signs of neurological defects in terms of any large fiber distributions; color, temperature, tactical sensation, and motor activity are normal in the right proximal leg where he experiences his symptoms. A February 2017 VA examination report reflects that the Veteran has persistent edema that is incompletely relieved by elevation of extremity and aching and fatigue in the leg after prolonged standing and walking. However, persistent stasis pigmentation or eczema is not shown. Therefore, the Veteran's varicose veins of the right lower extremity warrants a 20 percent disability rating under DC 7120 and no higher, from June 3, 2010. In sum, affording the Veteran the benefit of the doubt, an increased 20 percent rating, but no higher, for persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema, is warranted from June 3, 2010. However, the preponderance of the evidence is against a finding that the Veteran had shown the same symptomatology prior to June 3, 2010, or persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration since June 3, 2010, as there are no medical records in support of such assertions; to this extent the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 49. Increased Rating - Hypogonadism The Veteran also claims entitlement to a compensable initial disability rating for hypogonadism, which is currently rated as noncompensable, or zero percent disabling, from February 1, 2007, under DC 7599-7522, regarding an unlisted disability of the genitourinary system rated by analogy as deformity of the penis, with loss of erectile power. 38 C.F.R. § 4.115b, DC 7522 (2017). Pursuant to DC 7522, deformity of the penis, with loss of erectile power, warrants a 20 percent disability rating. Id. Additionally, a note to DC 7522 indicates that entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 (2017) should also be considered, see id.; however, the Board notes that the Veteran is already in receipt of a separate award of SMC due to loss of use of a creative organ as a result of his hypogonadism from February 1, 2007. Although the rating schedule does not provide a zero percent evaluation for DC 7522, a noncompensable, zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In an April 2011 private medical record, the Veteran denied difficulty with erection but complained of a mild diminished sexual drive. The February 2017 VA examiner found that while the Veteran has erectile dysfunction, he is able to achieve an erection sufficient for penetration and ejaculation without medication. Further, upon physical examination, the penis and testes were noted to be normal. Notably, under DC 7522, a 20 percent disability rating requires deformity of the penis, with loss of erectile power. 38 C.F.R. § 4.115b, DC 7522 (emphasis added); cf. Melson v. Derwinski, 1 Vet. App. 334 (1991). While the evidence above documents the Veteran's erectile dysfunction, there is no evidence that he has exhibited deformity of the penis at any time during the appeal period. As such, the Board finds that a compensable disability rating is not warranted under DC 7522 for any period on appeal. The preponderance of the evidence is against the Veteran's claim of entitlement to a compensable initial disability rating for hypogonadism, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3; Gilbert, 1 Vet. App. at 49. ORDER Entitlement to service connection for a heart disorder, to include left ventricular hypertrophy and palpitations, is denied. An increased 20 percent disability rating for varicose veins of the right lower extremity is granted, but no higher, since June 3, 2010, subject to the laws and regulations governing the award of monetary benefits. A disability rating in excess of 10 percent for varicose veins of the right lower extremity prior to June 3, 2010, and a disability rating in excess of 20 percent thereafter, is denied. An initial compensable disability rating for hypogonadism is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs