Citation Nr: 1757788 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 10-08 362 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for diabetes mellitus with hypertension and erectile dysfunction, on the basis of substitution. 2. Entitlement to an initial rating in excess of 30 percent for coronary artery disease prior to May 12, 2011, on the basis of substitution. 3. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, on the basis of substitution. 4. Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity, on the basis of substitution. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to January 1969. He died in January 2013, during the pendency of his appeal. The appellant, the Veteran's widow, has been recognized as the substitute claimant pursuant to 38 U.S.C. § 5121A (2012); 38 C.F.R. § 3.1010(b) (2017). These matters initially came to the Board of Veterans' Appeals (Board) on appeal from a November 2008 decision of the RO that, in pertinent part, denied a disability rating in excess of 20 percent for service-connected diabetes mellitus with hypertension and erectile dysfunction; and that granted service connection for coronary artery disease evaluated as 30 percent disabling, for peripheral neuropathy of the right lower extremity evaluated as 10 percent disabling, and for peripheral neuropathy of the left lower extremity evaluated as 10 percent disabling-each effective May 12, 2011. The Veteran timely appealed for higher ratings. In July 2011, the Board remanded the matters for additional development. In November 2016, the RO increased the disability evaluation to 100 percent for coronary artery disease, effective May 12, 2011, on the basis of substitution. Because higher evaluations are available for the disability prior to May 12, 2011, and the substitute claimant is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In June 2017, the Board again remanded the matters for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for higher compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board notes that the Veteran already had been awarded both TDIU and special monthly compensation. Hence, it is unnecessary to remand the matter for further action. FINDINGS OF FACT 1. The Veteran's diabetes mellitus with hypertension and erectile dysfunction was treated with insulin and oral medications and a restricted diet, but had not required restriction or regulation of activities. 2. Prior to May 12, 2011, the Veteran's coronary artery disease had not involved more than one episode of acute congestive heart failure in any year; or a workload of greater than 3 METs (metabolic equivalents) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 3. Throughout the rating period, peripheral neuropathy was shown to be manifested by numbness of the right foot and by neurological deficits equivalent to no more than mild incomplete paralysis of the sciatic nerve of the right lower extremity; neurological deficits equivalent to moderate or severe incomplete paralysis, or complete paralysis were not shown. 4. Throughout the rating period, peripheral neuropathy was shown to be manifested by numbness of the left foot and by neurological deficits equivalent to no more than mild incomplete paralysis of the sciatic nerve of the left lower extremity; neurological deficits equivalent to moderate or severe incomplete paralysis, or complete paralysis were not shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for diabetes mellitus with hypertension and erectile dysfunction, on the basis of substitution, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.119, Diagnostic Code 7913 (2017). 2. The criteria for a disability rating in excess of 30 percent for coronary artery disease with myocardial infarction, cardiomyopathy, and chronic congestive heart failure, on the basis of substitution, are not met prior to May 12, 2011. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.104, Diagnostic Code 7005 (2017). 3. The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, on the basis of substitution, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity, on the basis of substitution, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). These duties have been satisfied in this appeal. All available records relating to the claims have been obtained, to the extent possible. Reports of VA examinations in connection with the claims on appeal are of record and appear adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. As a substitute claimant, the appellant has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, there is no further assistance that would be reasonably likely to assist the appellant in substantiating the claims. 38 U.S.C. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a Veteran's symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That being said, given unintended delays during the appellate process, VA's determination of the "current level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the increased rating claim has been pending. In those instances, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the appellant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). The appellant is competent to testify on factual matters of which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). She is also competent to report symptoms experienced by the Veteran prior to his death. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The appellant is competent to describe the symptoms and their effects on previous employment and daily activities. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. A. Diabetes Mellitus with Hypertension and Erectile Dysfunction Service connection has been established for diabetes mellitus. The RO evaluated the Veteran's disability as 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913. Pursuant to Diagnostic Code 7913, a 20 percent rating is assigned for diabetes mellitus requiring insulin and restricted diet, or oral hypoglycemic agent and restricted diet. A rating of 40 percent is assigned for diabetes mellitus requiring insulin, restricted diet, and regulation of activities. A 60 percent evaluation is for application when diabetes mellitus requires 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. A 100 percent evaluation requires 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 3 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. 38 C.F.R. § 4.119, Diagnostic Code 7913 (2017). Historically, the Veteran's diabetes mellitus had been controlled with oral medications, insulin, and a restricted diet. VA records show that strenuous activities were limited in November 2004, due to bronchitis. The report of a February 2006 VA examination shows no restrictions of normal activities due to diabetes mellitus. VA records show that strenuous activities were restricted in February 2008, due to bronchitis. The report of a July 2008 VA examination reflects that the Veteran visited his diabetic care provider monthly or less often; and that treatment consisted of insulin administered more than once daily, and oral medications. Following examination, the examiner opined that episodes of hypoglycemic reactions or ketoacidosis did not require hospitalization. The Veteran was instructed to follow a restricted or special diet. His ability to perform strenuous activities was not restricted. In an April 2009 addendum, the VA examiner opined that the Veteran's restriction of strenuous activities was less likely as not caused by or a result of his service-connected diabetes mellitus. In support of the opinion, the VA examiner reasoned that the Veteran denied any restrictions of activities during examination and none were found by the examination; and that the Veteran had numerous other medical issues that could restrict his activities, such as chronic obstructive pulmonary disease. In May 2009, the Veteran reported having limited use of his legs, diet changes, insulin usage three times a day, and restricted activities due to diabetes mellitus. During a February 2010 VA examination, the Veteran reported that he no longer took any oral medication for diabetes mellitus; and that he now used insulin. The report of an October 2016 VA examination reflects a medical history of diabetes mellitus managed by a restricted diet and required insulin injections of one per day. The VA examiner noted that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. The Veteran had visited his diabetic care provider less than two times monthly for episodes of ketoacidosis and/or hypoglycemia. There were no episodes or reactions that required hospitalization over the past twelve months. The examiner noted that the Veteran was on insulin once a day, and there was no evidence of progressive loss of weight and strength. Here, throughout the rating period, the evidence supports a finding that the Veteran's diabetes mellitus required insulin, oral medications, and a restricted diet; and is against a finding that the Veteran's diabetes mellitus required regulation of activities. Under these circumstances, the evidence is against awarding an evaluation in excess of 20 percent, on the basis of substitution. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2017). Pursuant to Diagnostic Code 7913, Note (1)-pertaining to diabetes mellitus-complications are rated as part of the diabetic process unless they are compensably disabling, in which case they are rated separately. The objective clinical findings consistently failed to show that either hypertension or erectile dysfunction met the criteria for a compensable rating during the rating period. The Veteran's hypertension was not compensably disabling (under Diagnostic Code 7101) because there was no showing that diastolic readings were predominantly 100 or more, or that systolic readings were predominantly 160 or more, or that there was a history of diastolic readings of 100 or more and continuous medication was required for control. Records show that the Veteran required continuous medication for coronary artery disease, which was separately rated. Moreover, the Veteran's erectile dysfunction was noncompensable (under Diagnostic Code 7522) because there was no deformity shown, although special monthly compensation had been awarded for loss of use of a creative organ. Under these circumstances, the Board must conclude that those findings outweigh the appellant's lay assertions regarding severity. Thus, the weight of the evidence is against assigning separate compensable disability ratings for either hypertension or erectile dysfunction, on the basis of substitution. 38 C.F.R. §§ 4.7, 4.21 (2017). B. Coronary Artery Disease Service connection has been established for coronary artery disease with myocardial infarction, cardiomyopathy, and chronic congestive heart failure. The RO evaluated the Veteran's heart disability as 30 percent disabling prior to May 12, 2011, under 38 C.F.R. § 4.104, Diagnostic Code 7005, based on evidence of cardiac hypertrophy and MET (metabolic equivalent) testing. Under Diagnostic Code 7005, coronary artery disease with a workload of greater than 5 METs (metabolic equivalents) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray warrants a 30 percent rating. A 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs, but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted when there is chronic congestive heart failure, or; workload of 3 METs or fewer results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters 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 to rate the Veteran. 38 C.F.R. § 4.104. Historically, the Veteran began treatment with cardiac medications for symptoms of dyspnea on exertion and associated chest pressure while hospitalized for exacerbation of chronic obstructive pulmonary disease in October 2005. At the time it was noted that the Veteran indeed had coronary artery disease with normal left ventricular function and low risk noninvasive study in the setting of other comorbidities, which suggested a good trial of medical therapy. Records show that the Veteran was referred again for cardiac catheterization in June 2006; mild left ventricular dysfunction was noted. An Agent Orange examination in March 2008 also noted coronary artery disease and indicated that stents were placed in 2006 and in 2008, reflecting a history of congestive heart failure and that the Veteran was not a candidate for coronary artery bypass surgery due to oxygen dependent chronic obstructive pulmonary disease. The report of a July 2008 VA examination reveals cardiac symptoms of angina, shortness of breath, fatigue, cough, peripheral edema, weakness, and dizziness. VA records, dated in October 2008, show that an echocardiogram was normal with ejection fraction in normal range and a METS score of 8 in February 2008. In March 2009, the Veteran reported having chest pain almost daily and was hospitalized for a transient ischemic attack. An echocardiogram revealed that the left ventricular was at the upper limits of normal, and the ejection fraction was 50 percent to 55 percent. The Veteran then was using an electric wheelchair. The report of a February 2010 VA examination reveals the onset of coronary artery disease, secondary to diabetes mellitus, in 2005; and that the Veteran had a myocardial infarction and a total of seven stents placed over the years. He currently took cardiac medications and had occasional angina and edema of extremities. His cardiac history revealed no history of rheumatic fever, heart rhythm disturbance, valvular heart disease, congestive heart failure, other heart disease, or syncope. Examination in February 2010 revealed no evidence of congestive heart failure or pulmonary hypertension. Heart sounds were present, and rhythm was regular. Diagnostic testing revealed that the heart size was normal, and ejection fraction was greater than 50 percent. Here, throughout the rating period prior to May 12, 2011, the Board finds that no more than the currently assigned 30 percent disability rating is warranted for the Veteran's heart disability, on the basis of substitution. While there is evidence that the Veteran has undergone, on more than one occasion, a cardiac catheterization and placement of stents-most recently, in 2008-the evidence does not reflect any episodes of congestive heart failure; and the Veteran had not reported experiencing any instances of congestive heart failure. Moreover, a physician in February 2008 found that the Veteran revealed a maximal workload of at least 8 METS. Although there is evidence of mild left ventricular dysfunction in June 2006, the ejection fraction was greater than 50 percent. The evidence of cardiac hypertrophy supports no more than the current 30 percent rating under Diagnostic Code 7005. Thus, the evidence is against the grant of a disability rating in excess of 30 percent, based on the Veteran's heart disability prior to May 12, 2011, on the basis of substitution. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2017). While the appellant contends that the Veteran's multiple stent placements and cardiac dysfunction warrant a higher rating, the objective findings consistently fail to show that the disability met the criteria for a higher rating at any time prior to May 12, 2011; and the Board concludes that those findings outweigh the lay assertions regarding severity. For the foregoing reasons, the Board finds that the evidence is against a rating in excess of 30 percent for coronary artery disease with myocardial infarction, cardiomyopathy, and chronic congestive heart failure prior to May 12, 2011, on the basis of substitution. C. Peripheral Neuropathy Service connection has been established separately for peripheral neuropathy of each lower extremity. The RO evaluated the Veteran's disability of each lower extremity as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520. A 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The report of a July 2008 VA examination reveals symptoms of peripheral neuropathy, such as: paresthesias, loss of sensation, pain, increased sensitivity, dysesthesia, and gait abnormality. Examination in July 2008 revealed decreased sensorium in the toes and up to the midfoot on both right and left lower extremities. Each lower extremity was cool to touch with trophic changes of thin skin, absent hair, and dystrophic nails; pulses were decreased. During a February 2010 VA examination, the Veteran reported having peripheral neuropathy in both feet. His medical history reflects very mild peripheral neuropathy in both lower extremities affecting the tip of the great toes. Examination in February 2010 revealed numbness and tingling in each foot. The Veteran's gait was normal; decreased pulses were noted in each foot. Motor loss for each lower extremity was described as a tremor. Sensory loss for each lower extremity was described as a mild decreased sensation to vibration at the great toe. Diagnoses included mild peripheral neuropathy of each lower extremity. The report of an October 2016 VA examination reflects that complications of the Veteran's diabetes mellitus include peripheral neuropathy; and the examiner noted that symptoms were very mild. Here, throughout the rating period, there have been no reports of loss of reflexes or muscle atrophy. No examiner has found significant neurological deficits of the lower extremities. The Veteran, at times, had reported numbness of his feet. The Board finds that no more than the currently assigned 10 percent disability rating for each lower extremity is warranted for symptoms of peripheral neuropathy described as mild under Diagnostic Code 8520, on the basis of substitution. There was no showing at any time of moderate neurological deficits affecting each lower extremity. For the foregoing reasons, the Board finds that the evidence is against initial disability ratings in excess of 10 percent each for peripheral neuropathy of each lower extremity, on the basis of substitution. ORDER An increased evaluation in excess of 20 percent for diabetes mellitus with hypertension and erectile dysfunction, on the basis of substitution, is denied. A disability evaluation in excess of 30 percent for coronary artery disease with myocardial infarction, cardiomyopathy, and chronic congestive heart failure prior to May 12, 2011, on the basis of substitution, is denied. An initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, on the basis of substitution, is denied. An initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity, on the basis of substitution, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs