Citation Nr: 18149851 Decision Date: 11/14/18 Archive Date: 11/13/18 DOCKET NO. 14-31 395A DATE: November 14, 2018 ORDER From April 6, 2008, to May 20, 2010, a rating in excess of 10 percent for coronary artery disease, status post coronary artery bypass surgery (coronary artery disease), is denied. From May 21, 2010, to August 31, 2010, a rating in excess of 100 percent for coronary artery disease is denied. From September 1, 2010, to December 11, 2012, a rating in excess of 30 percent for coronary artery disease is denied. From December 12, 2012, to February 28, 2013, a rating in excess of 100 percent for coronary artery disease is denied. On and after March 1, 2013, a rating in excess of 30 percent for coronary artery disease is denied. From May 31, 2010, to February 28, 2013, an initial rating of 10 percent, but no greater, for intermittent paroxysmal atrial fibrillation with dual chamber pacemaker (intermittent paroxysmal atrial fibrillation) is granted, subject to the laws and regulations governing the payment of monetary benefits. On and after March 1, 2013, a rating in excess of 10 percent for intermittent paroxysmal atrial fibrillation is denied. REMANDED Entitlement to service connection for inguinal hernia is remanded. Entitlement to service connection for diabetes mellitus type II, to include as due to exposure to herbicides, is remanded. Entitlement to a rating in excess of 20 percent for degenerative disc/joint disease of the cervical spine is remanded. Entitlement to an effective date prior to November 6, 2012, for a rating of 20 percent for degenerative disc/joint disease of the cervical spine is remanded. FINDINGS OF FACT 1. From April 6, 2008, to May 20, 2010, the Veteran’s coronary artery disease is characterized by a workload of greater than 7 METs but not greater than 10 METs and continuous use of medication but is not characterized by a workload of 7 METs or less, cardiac hypertrophy, cardiac dilation, or LVEF of 50 percent or less. 2. On May 21, 2010, the Veteran underwent coronary artery bypass surgery for his service-connected coronary artery disease. 3. From September 1, 2010, to December 11, 2012, the Veteran’s coronary artery disease is characterized by mild hypertrophy but is not characterized by a workload of 5 METs or less or an LVEF of 50 percent or less. 4. On December 12, 2012, the Veteran underwent a dual chamber pacemaker implant for his service-connected coronary artery disease. 5. On and after March 1, 2013, the Veteran’s coronary artery disease is characterized by a workload of greater than 5 METs but not less than 7 METs but is not characterized by a workload of 5 METs or less or an LVEF of 50 percent or less. 6. On and after May 31, 2010, the Veteran’s intermittent paroxysmal atrial fibrillation is characterized by one to four episodes per year of paroxysmal atrial fibrillation, but is not characterized by more than four episodes per year. CONCLUSIONS OF LAW 1. From April 6, 2008, to May 20, 2010, the criteria for an initial rating in excess of 10 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1–4.14, 4.104, Diagnostic Code 7005 (2017). 2. From May 21, 2010, to August 31, 2010, the criteria for a rating in excess of 100 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.104, Diagnostic Code 7017 (2017). 3. From September 1, 2010, to December 11, 2012, the criteria for a rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.104, Diagnostic Code 7005. 4. From December 12, 2012, to February 28, 2013, the criteria for a rating in excess of 100 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.104, Diagnostic Code 7019 (2017). 5. On and after March 1, 2013, the criteria for a rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.104, Diagnostic Code 7005. 6. From May 31, 2010, to February 28, 2013, the criteria for an initial rating of 10 percent, but no greater, for intermittent paroxysmal atrial fibrillation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.104, Diagnostic Code 7010 (2017). 7. On and after March 1, 2013, the criteria for a disability rating in excess of 10 percent for intermittent paroxysmal atrial fibrillation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.104, Diagnostic Code 7010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1964 to August 1988. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in September 2009, October 2013, July 2014, and February 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board will not assume jurisdiction over a claim of entitlement to an initial compensable rating for residual scar associated with degenerative joint disease of the cervical spine. This claim was addressed in a July 2014 statement of the case but not listed on the Veteran’s September 2014 substantive appeal. In correspondence received July 2018, the Veteran further indicated that he wished to withdraw this claim. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). In March 1989, the RO granted service connection for coronary artery disease at an initial noncompensable rating under Diagnostic Code 7099-7055 from September 1, 1988, the day after the Veteran left service. That decision was not appealed and is final. On April 6, 2009, the Veteran filed a claim for an increased rating. In July 2014, the RO increased the Veteran’s rating to 10 percent from June 9, 2006, 100 percent from May 21, 2010, 30 percent from September 1, 2010, 100 percent from December 12, 2012, and 30 percent from March 1, 2013. These rating are under Diagnostic Code 7018-7011. The Veteran is appealing the ratings assigned by the July 2014 decision. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Although the RO granted an increased rating from June 9, 2006, this assignment was in error. By law, the assigned date should have been no earlier than April 6, 2008. The Board is legally precluded from considering entitlement to an increased rating prior to April 6, 2008, but will not disturb the incorrectly-assigned date of June 9, 2006. Diagnostic Code 7005 provides compensation for arteriosclerotic heart disease (coronary artery disease). 38 C.F.R. § 4.104. A 10 percent disability rating is provided for documented coronary artery disease where there is a workload of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or if continuous medication is required. Id. A 30 percent disability rating is provided for documented coronary artery disease where there is a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or if there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is provided for documented coronary artery disease where there is more than one episode of acute congestive heart failure in the past year, workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. Id. A 100 percent rating is provided for documented coronary artery disease where there is chronic congestive heart failure, a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is LVEF of less than 30 percent. Id. Diagnostic Code 7011 provides compensation for sustained ventricular arrhythmias. 38 C.F.R. § 4.104. A 10 percent disability rating is provided where there is a workload of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or if continuous medication is required. Id. A 30 percent disability rating is provided where there is a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or if there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is provided where there is more than one episode of acute congestive heart failure in the past year, workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is LVEF of 30 to 50 percent. Id. A 100 percent rating is provided where there is chronic congestive heart failure, a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is LVEF of less than 30 percent. Id. A 100 percent rating is also provided for indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, for indefinite period from date of hospital admission for ventricular aneurysmectomy, or with an automatic implantable Cardioverter-Defibrillator (AICD) in place. Id. The Note to Diagnostic Code 7011 provides that a rating of 100 percent shall be assigned from the date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia or for ventricular aneurysmectomy. Six months following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105(e) (2017). Diagnostic Code 7018 provides compensation for implantable cardiac pacemakers. 38 C.F.R. § 4.104. A 100 percent rating is provided for the two months following hospital admission for implantation or reimplantation. Id. Thereafter, a minimum evaluation of 10 percent is provided based on supraventricular arrhythmias (Diagnostic Code 7010), ventricular arrhythmias (Diagnostic Code 7011), or atrioventricular block (Diagnostic Code 7015). Id. 1. From April 6, 2008, to May 20, 2010, entitlement to a rating in excess of 10 percent for coronary artery disease From April 6, 2008, to May 20, 2010, the Veteran’s service-connected coronary artery disease is currently considered 10 percent disabling. In pertinent part, a June 2009 VA examination indicates the use of aspirin with METS greater than 10 and no effects on the Veteran’s daily activities. In fact, he reported that he ran three miles a day at that time. Upon review, the Board finds this medical evidence supports the Veteran’s currently assigned rating of 10 percent. Prior to May 21, 2010, the evidence does not reflect cardiac hypertrophy, cardiac dilation, a workload of 7 METs or less, or an LVEF of 50 percent or less to support a rating in excess of 10 percent. 2. From May 21, 2010, to August 31, 2010, entitlement to a rating in excess of 100 percent for coronary artery disease On May 21, 2010, the Veteran underwent coronary artery bypass graft. Under Diagnostic Code 7017, a 100 percent rating is assigned for three months following hospital admission for surgery. From May 21, 2010, to August 31, 2010, the Veteran’s coronary artery disease is rated as 100 percent disabling, accordingly. As such, a higher rating is not available for such period. 3. From September 1, 2010, to December 11, 2012, entitlement to a rating in excess of 30 percent for coronary artery disease From September 1, 2010, to December 11, 2012, the Veteran’s coronary artery disease is currently rated as 30 percent disabling. A July 2010 VA medical record (received 7/21/14, page 159 of 707) indicates only “[m]ild LV hypertrophy.” Although this evidence demonstrates the existence of hypertrophy during the period, the evidence does not reflect a workload of 5 METs or less or an LVEF of 50 percent or less to support a rating in excess of 30 percent during this period. As a result, the Board finds a rating in excess of 30 percent is not warranted based on the medical evidence of record. 4. From December 12, 2012, to February 28, 2013, entitlement to a rating in excess of 100 percent for coronary artery disease On December 12, 2012, the Veteran underwent a dual chamber pacemaker implant. Under Diagnostic Code 7018, a 100 percent rating is provided for the two months following hospital admission for implantation or reimplantation. Although it is unclear why the RO extended the 100 percent rating to March 1, 2013, beyond the two-month prescribed period, the Board resolves all doubt in the Veteran’s favor and thus will not disturb such assigned rating. Accordingly, a higher rating is not available from December 12, 2012, to February 28, 2013, for coronary artery disease. 5. On and after March 1, 2013, entitlement to a rating in excess of 30 percent for coronary artery disease On and after March 1, 2013, the Veteran’s coronary artery disease is rated as 30 percent disabling. A March 2013 VA medical record indicates “LVEF normal or near normal.” An April 2013 VA medical record indicates a METS level of >7–10 with an LVEF of 55–60% and evidence of cardiac hypertrophy. A February 2018 VA heart examination indicates a METs value of >5–7, an LVEF of 55%, and the presence of cardiac hypertrophy. Here, the consistent evidence of cardiac hypertrophy supports a rating of 30 percent on and after March 1, 2013. However, a rating in excess of 30 percent is not warranted as the record shows LVEF values of 55 percent or greater, without METs values of 5 or less. 6. From May 31, 2010, to February 28, 2013, entitlement to an initial rating of 10 percent, but no greater, for intermittent paroxysmal atrial fibrillation As already noted, on April 6, 2009, the Veteran filed a claim for an increased rating for coronary artery disease. During the pendency of that claim, in February 2018, the RO granted service connection for intermittent paroxysmal atrial fibrillation with dual chamber pacemaker (previously rated with coronary artery disease) associated with coronary artery disease, status post coronary artery bypass surgery, at an initial rating of 10 percent under Diagnostic Code 7010-7018 from March 1, 2013. Diagnostic Code 7010 provides compensation for supraventricular arrhythmias. 38 C.F.R. § 4.104. A 10 percent rating is provided for permanent atrial fibrillation (lone atrial fibrillation) or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. Id. A 30 percent rating is provided for paroxysmal atrial fibrillation or other supraventricular tachycardia with more than four episodes per year documented by ECG or Holter monitor. Id. Upon review, the Board finds the evidence supports a 10 percent rating effective May 31, 2010. A VA medical record of this date (received 9/29/11, page 73 of 75) indicates atrial fibrillation. An August 2011 VA medical record (received 9/29/11, page 24 of 72) also indicates atrial fibrillation. A September 2011 VA medical record (received 9/29/11, page 17 of 75) indicates “Atrial Fibrillation” and “Aflutter [sic].” Consistent with this, a February 2018 VA heart examination shows he was first diagnosed with atrial fibrillation on May 31, 2010. Because the Board finds this evidence supports the existence of atrial fibrillation at an incidence of between one to two episodes per year on and after May 31, 2010, the Veteran is entitled to an initial rating of 10 percent from this date. However, as the medical evidence does not reflect four episodes or more per year of atrial fibrillation, a higher rating is not warranted under Diagnostic Code 7010. Additionally, because the Veteran is already being compensated for METs values under Diagnostic Code 7005, a separate rating for the same symptomatology under Diagnostic Code 7011 or 7015 would constitute the prohibited practice of pyramiding. 38 C.F.R. § 4.14. REASONS FOR REMAND 1. Entitlement to service connection for inguinal hernia is remanded. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81–86 (2006). See also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). These elements are satisfied with regard to the claim of entitlement to service connection for inguinal hernia. Regarding the first element, a May 2010 VA medical record (received 7/21/14, page 206 of 324) indicates surgery for a hernia. Regarding the second element, the Veteran argues that his hernia is the result of the forces he experienced while flying high-performance aircraft. See August 2010 notice of disagreement; April 2009 statement. Regarding the third and fourth elements, there is an indication that a hernia could be related to forces experienced when flying airplanes; however, the Board finds there is insufficient evidence of record by which to decide the claim. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. The Board further notes that the Veteran’s May 1964 pre-service examination (received 12/15/14, pages 76–77 of 90) and November 1964 entrance examination (received 12/15/14, pages 3–4 of 90) both indicate a pre-service hernia operation in 1962. Along with the examination, a medical opinion is required to assess whether this is clear and unmistakable evidence that a hernia disorder preexisted service and whether there is clear and unmistakable evidence that a hernia disorder was not aggravated by service. 2. Entitlement to service connection for diabetes mellitus, type II, to include as due to exposure to herbicides, is remanded. In an April 2009 statement and an August 2010 notice of disagreement, the Veteran argues that his diabetes is the result of exposure to herbicide agents while serving in Vietnam from November 1969 to November 1970. In a July 2009 statement, the Veteran lists three bases in Vietnam where he states that he landed and lists the approximate time frames when he landed at each base. The RO has only sought verification from the Veteran’s unit history for a single landing at one of those three bases. See June 2014 email correspondence. On remand, the RO should additionally seek to obtain flight logs from Vietnam bases that could verify the Veteran’s presence at any of the three bases during the specified time periods. 3. Entitlement to a rating in excess of 20 percent for degenerative disc/joint disease of the cervical spine is remanded. 4. Entitlement to an effective date prior to November 6, 2012, for a rating of 20 percent for degenerative disc/joint disease of the cervical spine is remanded. On November 6, 2012, the Veteran filed an increased rating claim for service-connected degenerative disc/joint disease of the cervical spine, and an October 2013 rating decision increased the rating from 10 percent to 20 percent effective November 6, 2012. The Veteran underwent VA examination in August 2016. A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169–70 (2016). As the August 2016 VA neck examination does not contain such findings, a new examination is required. Additionally, on Remand the RO should obtain all relevant VA treatment records dated from January 2018 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following actions: 1. Contact the Joint Services Records Research Center (JSRRC) and any other appropriate agency for verification of the Veteran’s claimed exposure to herbicide agents at the following bases for the following time periods: (a.) Da Nang Air Base during January 1970; (b.) Phu Cat Air Base from January 1970 to October 1970; and (c.) Tan Son Nhut Air Base during June 1970. If necessary, sequential requests should be made until the entire timeframes are covered. All requests and responses should be associated with the claims file. The results of this development should be outlined in a memorandum for the record, to include whether records support exposure to herbicide agents while in Vietnam. 2. Obtain all VA treatment records from January 2018 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 3. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and etiology of any current or previously-diagnosed hernia disorder. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran has any current or previously-diagnosed hernia disorder; (b.) Whether it is at least as likely as not (i.e. a 50 percent or better probability) that any current or previously-diagnosed hernia disorder was incurred in the Veteran’s service, including but not limited to exposure to G-forces in high-performance aircraft. In rendering this opinion, the examiner should consider the Veteran’s April 2009 statement and August 2010 notice of disagreement, both of which describe his experiences in high-performance aircraft during service. (c.) Whether there is clear and unmistakable evidence that a hernia disorder pre-existed service and whether there is clear and unmistakable evidence that such disorder did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. In rendering this opinion, the examiner should consider the Veteran’s May 1964 pre-service examination (received 12/15/14, pages 76–77 of 90) and November 1964 entrance examination (received 12/15/14, pages 3–4 of 90), both of which indicate a pre-service hernia operation in 1962. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 4. After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the current nature and severity of the Veteran’s service-connected neck disorder. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. The examiner should determine whether the Veteran’s neck disorder is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel