Citation Nr: 18149866 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-46 388 DATE: November 13, 2018 ORDER Entitlement to service connection for peripheral neuropathy of the left lower extremity, as secondary to service-connected diabetes mellitus (DM), type 2, is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity, as secondary to service-connected diabetes mellitus (DM), type 2, is granted. Entitlement to an effective date of December 3, 2008 for coronary artery disease (CAD) is granted. Entitlement to a rating greater than 20 percent for diabetes mellitus (DM), type 2, is denied. Entitlement to a rating greater than 20 percent for the residuals of prostate cancer from July 1, 2005 to August 27, 2013 is denied. Entitlement to a rating greater than 40 percent for the residuals of prostate cancer from August 28, 2013 is denied. REMANDED Entitlement to a rating greater than 10 percent for CAD from January 6, 2010 to October 16, 2012 is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. DM caused peripheral neuropathy of the left lower extremity. 2. DM caused peripheral neuropathy of the right lower extremity. 3. VA did not receive a formal or informal claim for entitlement to service connection for CAD prior to January 6, 2010. 4. The earliest evidence of the Veteran’s CAD dates from December 3, 2008. 5. The Veteran does not treat his DM with insulin. 6. From July 1, 2005 to August 27, 2013, the Veteran’s predominant residual of prostate cancer was nocturia, which resulted in awakening to void fewer than five times per night. 7. From August 28, 2013, the Veteran’s predominant residual of prostate cancer was nocturia, which resulted in awakening to void five or more times per night. The Veteran did not wear an appliance or wear absorbent materials. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral peripheral neuropathy, as secondary to service-connected DM, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for an effective date of December 3, 2008 for the award of service connection for CAD are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400, 3.816. 3. The criteria for a rating greater than 20 percent for DM have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.119, Diagnostic Code 7913. 4. From July 1, 2005 to August 27, 2013, the criteria for a rating greater than 20 percent for urinary frequency have not been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527. 5. From August 28, 2013, the criteria for a rating greater than 40 percent for urinary frequency have not been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7527. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1965 until May 1967. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of March 2013 and March 2014 by the Department of Veterans Affairs (VA). VA has rated the Veteran as 100 percent disabled since October 17, 2012. Merits Analysis – Bilateral Peripheral Neuropathy VA has rated the Veteran's DM pursuant to 38 C.F.R. § 4.119, Diagnostic Code (DC) 7913. Note 1 of this DC instructs adjudicators to evaluate compensable complications of DM separately unless they are part of the criteria used to support a 100 percent evaluation. The Veteran does not merit a 100-percent rating for DM. This, combined with evidence showing both the causal relationship between the DM and bilateral peripheral neuropathy of the lower extremities and compensable nature of the neuropathy, warrants service connection for bilateral periphery neuropathy of the lower extremities. The Veteran's counsel thoroughly documented the evidence supporting these grants in a November 2016 Notice of Disagreement. Merits Analysis – CAD Earlier Effective Date Some exceptions to 38 C.F.R. § 3.400 exist. First, if compensation is awarded pursuant to a liberalizing law, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Moreover, if a claim is reviewed, upon the Veteran’s request, more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for only a period of one year prior to the date of receipt of the request for review. See 38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p); McCay v. Brown, 9 Vet. App. 183 (1996), aff’d 106 F.3d 1577 (Fed. Cir. 1997). A second exception to the regulations regarding effective dates for disability compensation involves those veterans who qualify as eligible under 38 C.F.R. § 3.816. See also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). Under that regulation, a Nehmer class member is a Veteran who served in the Republic of Vietnam and who has a “covered herbicide disease.” See 38 C.F.R. § 3.816(b). The Board finds that because service connection for CAD was granted based on the Veteran’s presumed exposure to herbicides while serving in the Republic of Vietnam, he is a Nehmer class member as is contemplated under 38 C.F.R. § 3.816(b). The regulation provides for situations where the effective date can be earlier than the date of the liberalizing law, assuming a “Nehmer class member” has been granted compensation for a covered herbicide disease. Either (1) VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, or (2) the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, which in this case is August 31, 2010. In these situations, the effective date of the award will be the later of the date VA received such claim or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2). VA added ischemic heart disease (IHD) as a presumptive disability on August 31, 2010. Pursuant to 38 C.F.R. § 3.309(e), IHD includes CAD. As such, the issue is whether VA received a claim for CAD between May 3, 1989 and August 31, 2010. The Nehmer Training Guide (NTG), which VA published in 2011, is instructive here. Specifically, the NTG cites multiple forms a claim can take for Nehmer purposes. (p. 18-19). The following passage is important: It is not the case that medical records alone constitute a claim for Nehmer purposes. However, it is a rule that if, at the time of a prior decision on any compensation claim, VA had medical evidence containing a diagnosis of a now covered condition (e.g., IHD), then the condition is considered to have been part of the previously denied claim. It may help to think about it this way: If a presumption of service connection for IHD existed at the time of a prior RO decision on a different disability, would VA have inferred and granted [service connection] for IHD because it then had evidence of the disease? If so, then we assume for Nehmer purposes, that the prior claim included a claim for IHD, even if it was not expressly claimed at the time. This is what equates to medical records confirming a diagnosis of a presumptive disease qualifying as a claim for Nehmer purposes. (p. 19; emphasis in original). The Veteran, through his attorney, argues that December 3, 2008, the date a cardiac catherization diagnosed CAD, is warranted for the award of service connection for CAD. The Veteran did not file a claim for service connection for CAD, either formal or informal, prior to January 6, 2010. However, he filed a formal claim for service connection for DM which VA received on April 25, 2005. This date is critical, as the NTG explains: [Medical records] do not constitute a claim by themselves, but if [VA has] such medical records at the time [VA receives] a separate [service connection] claim, then the condition shown by the medical records is part of that claim. Accordingly, for effective-date purposes, they should be considered part of whatever claim was the subject of the rating decision. (p. 19-20; emphasis in original) Applying the two NTG excerpts, the Board finds that: 1) the first evidence of CAD is from a December 3, 2008 cardiac catherization, and 2) the Veteran filed his DM claim on April 25, 2005. In developing the DM claim, which VA subsequently granted in 2013, VA received medical records showing a diagnosis of CAD. The NTG cites an example which demonstrates why the timing of the receipt of these records is immaterial: The Veteran filed a claim for service connection for a psychiatric condition in 1990. In developing the claim, VA receives medical records showing a diagnosis of IHD. VA denies the claim in 1991. Under [Nehmer] footnote 1, IHD is deemed part of the 1990 claim, and the effective date may be the later of the date of that claim or date disability arose. This instruction applies if the IHD records were incorporated into the record after the psychiatric was originally adjudicated; if for example, the claimant appealed that issue and submitted the IHD records in the course of the appeal. (p. 20). Given the foregoing, the effective date for the Veteran’s grant of CAD is the date VA received the claim or the date entitlement arose, whichever is later. Applying the NTG to the facts above, VA is deemed to have received the Veteran’s CAD claim on April 25, 2005. As this date is earlier than the date entitlement arose – December 3, 2008 for the diagnosis of CAD – December 3, 2008 is the effective date. Increased Ratings – Background Law Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. If, as here, there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). See also AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original rating remains in controversy when less than the maximum available benefit is awarded); Hart v. Mansfield, 21 Vet. App. 505 (2007). Merits Analysis – DM The Veteran contends that his DM was more severe than the initial evaluation from the grant of service connection. VA granted service connection, effective April 25, 2005. VA has rated the DM under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under this section, a 20 percent evaluation is assigned for DM requiring insulin and a restricted diet, or an oral hypoglycemic agent and a restricted diet. A 40 percent rating, the next highest rating, is assigned for DM requiring insulin, restricted diet, and regulation of activities. Complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Noncompensable complications are considered part of the diabetic process under diagnostic code 7913. 38 C.F.R. § 4.119, Note (1). No evidence shows a medical professional has prescribed insulin to the Veteran. Insulin is required for a 40 percent rating, and the Veteran has failed to meet this requirement. Therefore, the appeal is denied. Merits Analysis – Prostate Cancer Residuals from July 1, 2005 to August 27, 2013 The evidence suggests the Veteran's urinary frequency is the Veteran's predominant prostate cancer residual. Pursuant to 38 C.F.R. § 4.115a, the criteria regarding urinary frequency provide that a 10 percent rating is warranted for daytime voiding interval between two and three hours, or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding intervals between one and two hours, or awakening to void three to four times per night. The maximum rating based on urinary frequency is 40 percent, which is assigned for daytime voiding intervals less than one hour, or awakening to void five or more times per night. The evidence for the period from July 1, 2005 to August 27, 2013 shows VA properly assigned a 20 percent rating. It reveals nocturia throughout the period, but it declined over time. For example, the Veteran reported nocturia of one-hour increments in 2004 (outside of the period under consideration), but it declined to once nightly per a September 2009 treatment record. Moreover, treatment records from March 2010 and March 2012 shows the Veteran denied voiding complaints. The Board will not disturb the 20 percent rating, but the Board finds he does not meet the criteria required for the 40 percent rating for the period from July 1, 2005 to August 27, 2013. The Board therefore denies the appeal. Merits Analysis – Prostate Cancer Residuals from August 28, 2013 The Veteran is at the maximum rating for urinary frequency for this period. He would only be entitled to a higher rating under the criteria for voiding dysfunction, also rated under 38 C.F.R. § 4.115a. However, the evidence does not show the Veteran uses an appliance or wears absorbent materials to retard voiding. Thus, the criteria for voiding dysfunction are inapplicable, and the Board denies the appeal. REASONS FOR REMAND Given the Board's decision regarding the earlier effective date for the grant of service connection for CAD, VA will need to rate the Veteran's disability for the period from December 3, 2008 to January 5, 2010. This rating will necessarily impact the increased rating claim for CAD from January 6, 2010 to October 16, 2012, so they are therefore inextricably intertwined. Also, the Board's decision to service connect the Veteran's bilateral peripheral neuropathy of the lower extremities necessarily impacts the TDIU issue. VA will need to rate these disabilities before the Board can adjudicate the TDIU issue because the Veteran, through his attorney's March 20, 2017 letter, which VA received on April 10, 2017, contends the neuropathy "impacts his ability to work by preventing him from being able to drive". These issues are therefore inextricably intertwined. The matters are REMANDED for the following action: 1. Implement the Board's grant of an effective date of December 3, 2008 for the grant of service connection for CAD. Determine what, if any, impact this has on the increased rating claim for CAD from January 6, 2010 to October 16, 2012. 2. Implement the Board’s grant of a service connection for bilateral peripheral neuropathy of the lower extremities. Determine what, if any, impact this has on the TDIU claim. (Continued on the next page)   3. Readjudicate the claims. If the claims remain denied, in whole or in part, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel