Citation Nr: 18149024 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 10-49 730 DATE: November 8, 2018 ORDER 1. A separate, compensable rating for left foot ulcer is granted. 2. Service connection for cardiac disorder, to include coronary artery disease, atrial fibrillation and peripheral vascular disease, claimed as ischemic heart disease, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran had a compensably disabling left foot ulcer as a complication of diabetes mellitus, type 2, during the period on appeal. 2. A cardiac disorder is not causally or etiologically related to service, did not have an onset during service or within one year of discharge, and may not be presumed to have been incurred during service, to include as due to exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for a separate, compensable rating for left foot ulcer have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310, 4.119 (2017). 2. The criteria for service connection for cardiac disorder have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1964 to August 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in January 2011 and July 2012 by a Department of Veterans Affairs (VA) Regional Office. In January 2015, the Board remanded the issues on appeal for additional development, as well as the issues of entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. Thereafter, in December 2016, the RO granted the Veteran service connection for right and left upper extremity peripheral neuropathy. As these claims have been granted in full, they are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a separate, compensable rating for a left foot ulcer secondary to diabetes mellitus, type 2 The Veteran contends a left foot ulcer should be separately rated from his service-connected diabetes mellitus, type 2. The Veteran is currently service-connected for diabetes mellitus, type 2, with left foot ulcer, which is rated under Diagnostic Code 7913. 38 C.F.R. § 4.119. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be separately rated unless they are part of the criteria used to support a 100 percent evaluation and that noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. In this regard, during an April 2012 VA examination, the examiner reported that the Veteran has a foot ulcer due to his diabetes. In October 2016, photographs taken during the 2012 examination were associated with the record. The photographs show the presence of an ulcer on the bottom of the Veteran’s left foot underneath his big toe. The Veteran’s VA treatment records show that he sought treatment for foot pain in April 2014, May 2014, July 2014, and September 2014. The treatment providers noted the presence of an ulcer on the Veteran’s left foot and treated such condition. Thereafter, the Veteran was examined in regard to his bilateral lower extremities in September 2014. The examiner noted that the Veteran has a history of left foot ulceration and that he required treatment for such condition in May 2014, July 2014, and September 2014. In this case, the Veteran’s left foot ulcer was noted to be a complication of diabetes and was present during the period on appeal. Furthermore, the Veteran reported experiencing foot pain and received medical treatment for a left foot ulcer on several occasions in 2014. Therefore, resolving all doubt in the Veteran’s favor, the Board finds the Veteran had a separate, compensable left foot ulcer for at least a portion of the period on appeal related to his service-connected diabetes mellitus, type 2. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, a separate, compensable rating is warranted for a left foot ulcer. 2. Entitlement to service connection for cardiac disorder, to include coronary artery disease, atrial fibrillation and peripheral vascular disease, claimed as ischemic heart disease, and to include as due to exposure to herbicide agents Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Federal Circuit has held that continuity of symptomatology under 38 C.F.R. § 3.303(b) applies only to chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (2013). The law provides that “a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service.” 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. For purpose of applying the presumption of exposure to herbicide agents under 38 C.F.R. § 3.307(a)(6)(iii), “service in the Republic of Vietnam” means that a veteran must have been present within the land borders of Vietnam to obtain the benefit of the presumption of herbicide exposure. See Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008). Section 3.307(d)(6) provides that the term “herbicide agent” means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(d)(6)(i). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, the diseases listed under 38 C.F.R. § 3.309(e) shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provision under 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases associated with exposure to certain herbicide agents is as follows: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Nevertheless, when service connection cannot be granted on a presumptive basis, the Veteran may still establish service connection on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran contends he has a cardiac disorder related to in-service exposure to herbicide agents. Specifically, he stated in a February 2011 notice of disagreement that he has coronary artery disease, atrial fibrillation, vascular heart disease, and ischemic heart disease due to herbicide exposure. The Veteran’s service treatment records (STRs) do not contain any relevant treatment for, diagnosis of, or complaints of a heart condition. No heart disorders or symptoms were reported or noted during his June 1967 separation examination. The Veteran’s service personnel records (SPRs) show that he served in the land borders of the Republic of Vietnam, and as such, VA presumes in-service exposure to herbicide agents. The Veteran was afforded an examination in regard to this claim in December 2010. Based on the examination and an echocardiogram, the examiner reported that the Veteran has atrial fibrillation and hypertension but that he has not been diagnosed with ischemic heart disease and does not exhibit signs of ischemic heart disease. In January 2014, the Board remanded this claim to afford the Veteran an examination and nexus opinion in regard to his diagnosed atrial fibrillation. Pursuant to the Board remand, the Veteran was afforded a VA examination in March 2014. The examiner found the Veteran has atrial fibrillation but no presence of ischemic heart disease, myocardial infarction, congestive heart failure, or heart valve conditions. Subsequently, pursuant to the January 2015 Board remand, another VA opinion was obtained in December 2015. After reviewing the Veteran’s file, the examiner found that the Veteran has atrial fibrillation that is less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner explained that medical literature has found insufficient evidence to establish that atrial fibrillation is caused by herbicide exposure. The examiner also noted that the Veteran was not diagnosed with atrial fibrillation until approximately 40 years after his exposure to herbicide in Vietnam. The examiner reported that hypertension is the most likely risk factor for atrial fibrillation and that the Veteran has a history of hypertension. The Board finds the March 2014 and December 2015 VA examiners’ medical opinions are unequivocal and provide sufficient rationale based on the relevant information, to include the Veteran’s STRs, post-service treatment records, relevant diagnostic testing, and the Veteran’s statements of record. Moreover, the examiners’ explanations are logical and follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In addition, unlike other heart disorders, to include the claimed but not diagnosed ischemic heart disease and coronary artery disease, atrial fibrillation is not a disorder that is presumptively related to herbicide exposure. See 38 C.F.R. § 3.309(e). Furthermore, the Veteran has not claimed, and the record does not show, that he experienced relevant symptoms or other indications of atrial fibrillation during his military service. While the Veteran believes that he has a cardiac disorder related to in-service exposure to herbicide agents, this is a complex medical question outside the competence of a non-medical expert. In this regard, diagnosing his heart condition and addressing whether the condition is due to herbicide exposure requires expert consideration and cannot be considered within the competence of a non-expert lay witness. Thus, the Veteran, as a lay person, has not established the competence needed to rebut expert medical opinions of record as to his diagnosed heart condition or the etiology of such condition. See Fountain v. McDonald, 27 Vet. App. 258, 274-75; Monzingo, 26 Vet. App. at 106. As such, his opinion is not adequate to rebut the March 2014 or December 2015 VA examiners’ opinions, nor is it otherwise sufficiently probative to be considered competent evidence tending to increase the likelihood of a positive nexus between his herbicide exposure and his atrial fibrillation. See Fountain, 27 Vet. App. at 274-75. As the evidence of record does not show the Veteran has a heart disorder due to herbicide exposure, the preponderance of the evidence is against the claim. Therefore, the benefit-of-the-doubt doctrine is not applicable and service connection for a heart disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) The Veteran contends that he is unable to work due to his service-connected disabilities. In a September 2014 statement, he reported that his only skill is driving commercial trucks, which he can no longer do, and that his posttraumatic stress disorder (PTSD) prevents him from working with a large number of people. Thereafter, in an October 2014 correspondence, the Veteran stated that he could not drive trucks due to his diabetes, he could not stand or lift objects due to his peripheral neuropathy, and he could not work in an office due to his PTSD. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). To meet the schedular criteria, disabilities affecting a single body system, e.g. orthopedic, will be considered as one disability. Id. In this case, the implementation of the grant of a separate, compensable rating for left foot ulcer herein could impact VA consideration of entitlement to a TDIU. Therefore, the Board finds adjudication of the latter would be premature and must be remanded for re-adjudication following the implementation of the award. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue).   The matter is REMANDED for the following action: Following the implementation of the award of a separate, compensable rating for left foot ulcer, re-adjudicate the Veteran’s claim for a TDIU. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Jimerfield, Associate Counsel