Citation Nr: 1802158 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-11 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as due to herbicide exposure. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected coronary artery disease or due to herbicide exposure. 3. Entitlement to service connection for familial tremor (claimed as seizure disorder), to include as secondary to medications prescribed for service-connected coronary artery disease. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to medications prescribed for service-connected coronary artery disease. 5. Entitlement to an initial disability rating in excess of 10 percent for service-connected coronary artery disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to February 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2012 and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2017 the Veteran testified on the record in a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's claims file. The issues of entitlement to service connection for bilateral lower extremity peripheral neuropathy, hypertension, familial tremor (claimed as seizure disorder), and erectile dysfunction are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the period on appeal the preponderance of the evidence shows that the Veteran's service-connected coronary artery disease was characterized by estimated workload greater than 7 metabolic equivalents (METs) but not greater than 10 METs resulting in fatigue; evidence of estimated workload greater than 5METs but not greater than 7 METs, or of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray was not shown. CONCLUSION OF LAW For the period on appeal the criteria for the assignment of a rating in excess of 10 percent for the service-connected coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code (DC) 7005 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his service-connected heart disability is more severe than currently rated. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Throughout the course of the appeal, the Veteran's service-connected coronary artery disease has been rated under 38 C.F.R. § 4.104, DC 7005. Under this, a 10 percent rating is assigned when the coronary artery disease results in a workload of greater than 7 METs, but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required. A higher 30 percent rating is assigned when the coronary artery disease results in a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A rating of 60 percent is assigned when a veteran had more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A rating of 100 percent is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note(2). The Veteran filed a claim of service connection for a heart disability in April 2012. In the August 2012 rating decision, service connection was granted and an initial 10 percent rating assigned, effective April 18, 2012. Pertinent evidence includes a November 2011 North Texas Heart Center Rest/Stress SPECT Imaging Report. The impressions provided included normal myocardial perfusion imaging, no evidence for prior myocardial infarction, overall normal left ventricular systolic function, and no evidence for myocardial ischemia with regadenoson infusion. A February 2012 treatment report from North Texas Heart Center cited a January 2012 cardiac catheterization showing a normal ejection fraction and no inducible ischemia. In June 2012 the Veteran was provided a VA examination during which the examiner completed an ischemic heart disease disability benefits questionnaire (DBQ). The DBQ provided that the Veteran was taking continuous medication for his coronary artery disease. There was no history of myocardial infarction, coronary bypass surgery, heart transplant, implanted cardiac pacemaker, or implanted automatic implantable cardioverter defibrillator. The Veteran's reported symptoms included fatigue and the METs level was found to be greater than seven but no greater than 10. The Veteran's coronary artery disease was not found to impact his ability to work, the VA examiner indicated that as of his last, February 2012, visit the Veteran noted no symptoms of chest pain or fatigue. In March 2017 the Veteran testified before the undersigned VLJ regarding his service-connected coronary artery disease. The Veteran testified that he received all of his treatment through VA and that he was taking continuous medication for the condition. When questioned as to whether his service-connected coronary artery disease had gotten worse since his June 2012 VA DBQ the Veteran responded that he thought that the condition was better or about the same. He further testified that he reports every six months to the VA for a review of his medications. After considering all of the evidence of record, the Board finds that the Veteran's coronary artery disease did not warrant a rating in excess of 10 percent at any time during the period on appeal. In this regard, the medical evidence of record fails to demonstrate that the criteria set out in 38 C.F.R. § 4.104, DC 7005, and necessary for the assignment of a 30 percent (or higher) rating, have met or more closely approximated. Review of the evidence of record during this time, to particularly include the findings set out as part of the VA DBQ report signed in June 2012, wherein the examiner reported estimated METs of more than seven and less than 10, shows that the criteria for the next higher 30 percent rating were not met, as the weight of the evidence did not show there had been evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray. Accordingly, a rating in excess of 10 percent is not warranted for the coronary artery disease. In reaching these decisions, the Board considered the doctrine of reasonable doubt, however, where the preponderance of the evidence is against the appellant's claims (in part), the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a disability rating in excess of 10 percent for the service-connected coronary artery disease is denied. REMAND A. Peripheral Neuropathy The Veteran has maintained that he has bilateral lower extremity peripheral neuropathy that is due to service. The Veteran currently has a diagnosis of bilateral lower extremity peripheral neuropathy. The claim has been denied thus far as failing to meet the requirements for presumptive service connection due to conceded herbicide exposure because the diagnosis did not come until 2010. 38 C.F.R. §§ 3.307(a)(6) , 3.309(e). However, the Veteran's claims file does not reveal any medical opinion regarding etiology of the Veteran's bilateral lower extremity peripheral neuropathy. Specifically the issue has not been adjudicated sufficiently under the theory of direct service connection. When presumptive service connection has been ruled out direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service, to include as based on exposure to herbicides. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). At the hearing before the undersigned Veterans Law Judge, the Veteran testified that none of his doctors, to date, have offered an opinion as to what has caused his bilateral lower extremity peripheral neuropathy. Given the Veteran's current diagnosis of bilateral lower extremity peripheral neuropathy and the Veteran's conceded in-service herbicide exposure the "low threshold" standard [for when an examination is necessary] is met. McLendon v. Nicholson, 20 Vet. App. 79 (2006) is met. B. Hypertension The Veteran's claim for service connection for hypertension has thus far been characterized as secondary to his service-connected coronary artery disease. The Board notes that the Veteran has conceded in-service herbicide exposure and that the Veterans and Agent Orange: Update 2012, published by the National Academy of Sciences (NAS) Institute of Medicine (IOM) suggests an association between herbicide exposure and hypertension. Indeed the text of the report states "[t]here is limited or suggestive evidence of an association between the chemicals of interest and type 2 diabetes, hypertension, ischemic heart disease, and now stroke." While the update may have added stroke, which is not the basis of this claim, it also clearly recognizes limited and suggestive evidence regarding hypertension. See Nat'l Acad. Of Sci., Inst. Of Med., Veterans & Agent Orange: Update 2012 (2013) (Update). Therefore the Board finds that to fully adjudicate the Veteran's claim a medical opinion is required to address this theory of service connection. Furthermore, the Veteran previously underwent a VA examination for his claim for service connection for hypertension in October 2014. The opinion proffered by the VA examiner was that the Veteran's diagnosed hypertension is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected coronary artery disease. As supporting rationale the VA examiner cited the fact that the Veteran's hypertension diagnosis "was made at [the] same time of his initial service connected condition [coronary artery disease] and therefore cannot be causally related." The VA examiner did not, however, provide any opinion regarding whether the Veteran's hypertension was aggravated by his service-connected coronary artery disease. The Board finds that the opinion of the October 2014 VA examiner is inadequate. The opinion that the Veteran's hypertension could not be caused by his service-connected coronary artery disease because it was diagnosed at the same time contains an insufficient rationale. Furthermore, the October 2014 examination is inadequate because as stated above there was no opinion offered regarding aggravation of the Veteran's hypertension by his service-connected coronary artery disease. As such, an addendum opinion must be obtained. C. Familial Tremor (claimed as seizure disorder) In his testimony before the undersigned the Veteran clarified that, in addition to his service-connected coronary artery disease medications, it was his contention that his tremors were caused by his peripheral neuropathy and indicated that a private physician had come to the same conclusion. As the issue of entitlement to service connection for bilateral lower extremity peripheral neuropathy is being remanded for further development, decision by the Board on the issue of entitlement to service connection for familial tremor (claimed as seizure disorder) would, at this point, be premature. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, a VA physician in June 2016, while offering negative opinions on causation and aggravation of familial tremors by the Veteran's service-connected coronary artery disease medications, also opined that "the Veteran's seizure disorder was at least as likely as not proximately due to or the result of a post service process." However, the VA physician offered no further explanation or rationale for this conclusion. An addendum opinion should also be provided clarifying what the VA physician specifically meant by "post-service process." D. Erectile Dysfunction The June 2016 VA medical opinion also addressed whether it was at least as likely as not that the Veteran's erectile dysfunction was caused or aggravated by his service-connected coronary artery disease medications. While the VA physician proffered negative opinions to both of these questions, he also opined that it was at least as likely as not that the Veteran's erectile dysfunction was proximately due to or the result of a multifactorial etiology, to include the metoprolol therapy taken for his hypertension. As the Veteran's claim for service connection for hypertension is being remanded for further development the issue of entitlement to service connection for erectile dysfunction would, at this point, be premature. Tyrues, 23 Vet. App. at 177. Therefore, the claim must be remanded. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of his bilateral lower extremity peripheral neuropathy. The claims file and any pertinent records must be made available to the examiner for review. Based on the examination and review of the record, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's bilateral lower extremity peripheral neuropathy is etiologically related to his active service, including his conceded herbicide exposure. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completion of the foregoing contact the VA examiner who conducted the October 2014 hypertension examination (or, if unavailable, from medical professionals with appropriate expertise) and request an addendum opinion. The Veteran's entire claims files should be made available to the examiners for review in connection with the opinion. If the examiner determines that opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate VA medical examination. Based on review of the record (and examination if conducted), the examiner should answer the following questions. (a) Is it at least as likely as not (50 percent probability or better), that the Veteran's currently diagnosed hypertension, had its onset in service or is casually related to service, to include conceded exposure to herbicides in Vietnam? The examiner must specifically reference, in the opinion rationale, the National Academy of Sciences (NAS) Veterans and Agent Orange Updates, to include in 2010 and 2012, which stated that there was "limited or suggestive" evidence of an association between hypertension and herbicide exposure. In addition, the examiner must discuss whether they find the NAS Updates to be persuasive and weigh the relative risks presented by the Veteran's presumed Agent Orange exposure and other relevant factors. The examiner is advised that, although VA has not determined that hypertension qualifies for presumptive service connection based on herbicide exposure, this does not preclude a nexus to service. Instead, the examiner must consider all pertinent evidence, and offer an opinion as to whether the Veteran's hypertension is due to such exposure. (b) If the answer to (a) is no, is it at least as likely as not (50 percent probability or better) that the Veteran's hypertension was caused by the Veteran's service-connected coronary artery disease? (c) If the answer to (b) is no, is it at least as likely as not that the Veteran's hypertension was aggravated by his service-connected coronary artery disease? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After completion of the foregoing, contact the VA examiner who conducted the June 2016 examination (or, if unavailable, from medical professionals with appropriate expertise) and request an addendum opinion. The Veteran's entire claims files should be made available to the examiners for review in connection with the opinion. If the examiner determines that opinion cannot be provided without an examination, the Veteran should be scheduled for an appropriate VA medical examination. Based on review of the record (and examination if conducted), and a review of the cited medical literature, the examiner should answer the following questions. (a) Is it at least as likely as not (50 percent probability or better) that the Veteran's familial tremors (claimed as a seizure disorder) were caused by his bilateral lower extremity peripheral neuropathy? (b) If the answer to (a) is no, is it at least as likely as not that the Veteran's familial tremors (claimed as a seizure disorder) were aggravated by his bilateral lower extremity peripheral neuropathy? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. (c) If the answer to (b) is no, clarify and identify the "post service process" that the June 2016 VA examiner identified as the etiology of the Veteran's familial tremors (claimed as a seizure disorder). The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Thereafter, readjudicate the claims. If any of the benefits sought remain denied, issue an appropriate SSOC and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M.E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs