Citation Nr: 18152690 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 17-28 364A DATE: November 23, 2018 ORDER Service connection for a heart disability is denied. An increased disability rating in excess of 30 percent for diabetic nephropathy with hypertension, associated with diabetes mellitus type II with erectile dysfunction, is denied. An earlier effective date prior to June 21, 2016, for the grant of a total disability rating based upon individual unemployability (TDIU), is denied. FINDINGS OF FACT 1. The Veteran has not been diagnosed with a chronic heart disability for any period on appeal. 2. For the entire period on appeal, the Veteran’s diabetic nephropathy with hypertension, associated with diabetes mellitus type II with erectile dysfunction, has been manifested by no worse than persistent albuminuria with noncompensable hypertension, without edema, definite decrease in kidney function, or hypertension with diastolic pressure predominantly 120 or more. 3. Prior to June 21, 2016, the Veteran was not precluded from securing or following a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability 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); Brammer v. Derwinski, 3 Vet. App. 223 (1992). 2. The criteria for an increased disability rating in excess of 30 percent for diabetic nephropathy with hypertension, associated with diabetes mellitus type II with erectile dysfunction, have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.115(a), 4.115(b), Diagnostic Code (DC) 7541 (2017). 3. The criteria for an earlier effective date than June 21, 2016 for the grant of a TDIU rating have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1967 to December 1969, including active service in the Republic of Vietnam from May 1968 to May 1969. Service connection for a heart disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Service connection for certain specified diseases, including ischemic heart disease, may also be granted on a presumptive basis due to herbicide exposure, provided the disease manifests to a compensable degree within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease, including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable, and Prinzmetal’s angina. It does not include hypertension or peripheral manifestations of arteriosclerosis, such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. Service treatment records do not document any complaints, treatment, or diagnosis of a heart condition. An October 1969 physical examination prior to discharge documents a normal heart evaluation, without any noted defects or diagnoses of the heart, and the Veteran denied any heart conditions within a concurrent report of medical history. Despite the above, the Board is mindful that the Veteran’s service personnel records document his active service in the Republic of Vietnam sufficient to qualify for presumed exposure to an herbicide agent during active service. Given his presumed exposure to an herbicide agent, service connection may be warranted if the Veteran is found to have current ischemic heart disease. Significantly, however, there is no probative evidence that the Veteran has had a current diagnosis of ischemic heart disease, or another heart disability which is related to active service, for any period on appeal. Without a current heart disability, service connection is not warranted. To the extent that a March 2016 private physician’s assessment includes a diagnosis of hypertensive cardiovascular disease, the Board notes that the Veteran is already service-connected for hypertension associated with his diabetes mellitus type II and diabetic nephropathy. Moreover, the additional evidence of record does not document any other current cardiovascular disease or ischemic heart disease. Specifically, an October 2016 VA examiner found that the Veteran had not been diagnosed with a heart condition; the Veteran also denied that he had ever been diagnosed with a heart condition. Similarly, VA treatment records document multiple heart examinations which were normal and a 2008 stress test was negative for ischemia. In conclusion, the preponderance of evidence weighs against the Veteran’s claim of entitlement to service connection for a heart disability. As such, there is no reasonable doubt to be resolved, and the claim must be denied. Rating for diabetic nephropathy with hypertension, associated with diabetes mellitus type II with erectile dysfunction Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. With respect to the Veteran’s increased rating claim on appeal, the Board has considered his claim from one year prior to his June 21, 2016 increased rating claim, as well any staged rating periods are warranted. The Veteran’s service connected diabetic nephropathy with hypertension, associated with diabetes mellitus type II with erectile dysfunction, is currently rated as 30 percent disabling from October 16, 2003, under Diagnostic Code (DC) 7541. 38 C.F.R. § 4.115b, DC 7541 (2017). Thereunder, renal involvement in diabetes mellitus is to be rated as renal dysfunction. Under 38 C.F.R. § 4.115a, a 30 percent disability rating is warranted for renal dysfunction with constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling (diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more) under DC 7101. A 60 percent disability rating is warranted for renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling (diastolic pressure predominantly 120 or more) under DC 7101. An 80 percent disability rating is warranted for persistent edema and albuminuria with blood urea nitrogen (BUN) 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. Finally, a 100 percent disability rating is warranted for renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular. Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 30 percent for diabetic nephropathy with hypertension. Notably, there is no probative evidence of record that the Veteran’s diabetic nephropathy has resulted in renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension with diastolic pressure predominantly 120 or more for any period on appeal. Upon VA examination in September 2016, the Veteran’s diabetic nephropathy was documented to require continuous medication and resulted in persistent proteinuria; however, there was no need for regular dialysis, and no symptomatic renal tubular disorder, frequent attacks of colic with infection (pyonephrosis), urolithiasis, urinary tract infection, kidney transplant/removal, or tumors/neoplasms. The examiner concluded that the Veteran’s diabetic nephropathy did not result in any functional impact upon his ability to work. As the preponderance of the evidence weighs against the Veteran’s claim of entitlement to an increased disability rating in excess of 30 percent for diabetic nephropathy with hypertension, there is no reasonable doubt to be resolved, and the claim must be denied. Effective date for a TDIU Initially, the Board notes that the Veteran’s earlier effective date claim for TDIU as certified on appeal stems from a September 2016 rating decision which granted TDIU effective June 21, 2016, the date that the Veteran’s TDIU claim was received by VA. However, the Board is mindful that the Veteran had previously claimed entitlement to TDIU on April 4, 2011. Moreover, following an April 2012 rating decision which denied his TDIU claim, the Veteran initiated an appeal by submitting a timely May 2012 notice of disagreement (NOD). Finally, following an April 2013 statement of the case (SOC), the Veteran submitted an April 2013 statement which the Board now construes as a timely statement in lieu of a VA Form 9 formal appeal which effectively perfected the Veteran’s appeal and prevented the April 2012 rating decision from becoming final. In general, the effective date of an award of compensation and rating based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). When evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Given the above, the relevant inquiry is whether the Veteran was precluded from securing or following a substantially gainful occupation at any time prior to the currently assigned effective date of June 21, 2016, including from the one-year period preceding his April 4, 2011 TDIU claim. Within his April 2011 TDIU application, the Veteran reported that all his service-connected disabilities prevented employment. He stated that he last worked full time in January 1982 and further reported an educational history including two years of college, with no additional training or education. In May 2011, the Veteran reported that his last job was as a self-employed small merchant with a small community store; however, due to his service-connected conditions, he was unable to maintain and continue working, and believed that entitlement to TDIU was warranted. Upon VA general medical examination in August 2011, the VA examiner opined, based upon a review of the claims file, a physical examination, and the Veteran’s history, that the Veteran’s service-connected diabetes mellitus type II and its complications (including hypertension, nephropathy, erectile dysfunction, and peripheral neuropathy of the lower extremities) did not render him unemployable. The examiner noted that these conditions were under control with current treatments; therefore, the examiner found that the Veteran was able to sustain a gainful occupation with reasonable accommodations. A February 2012 VA eye examiner found no functional or employment activity limitations from an ophthalmologic standpoint. March 2012 VA examinations similarly found no functional impact upon the ability to work due to the Veteran’s diabetes mellitus or its complications, including diabetic nephropathy, diabetic peripheral neuropathy, hypertension, or erectile dysfunction. The Board has considered Social Security Administration (SSA) disability records, which are relevant, but not controlling on the Board. Specifically, a July 2008 SSA Disability Determination and Transmittal documents that the Veteran was found by SSA to be disabled from July 1, 2007 due to primary diabetic neuropathy (for which the Veteran is service-connected) and secondary disorders of the back (for which the Veteran is not service-connected). Notably, underlying March 2008 and July 2008 SSA vocational assessments are inconsistent as to whether the Veteran could perform has past job duties as a store clerk. Additionally, a March 2008 Disability Determination Program Internist Evaluation found that there was no limitation while sitting, standing, hearing, or speaking with mild walking, lifting, and carrying difficulty. Finally, the Board notes that the Veteran reported to SSA that he was self-employed at a convenience store from February 1976 to July 2007, which is inconsistent with this April 2011 TDIU Application that reported that he last worked full time in January 1982. To the extent that a March 2016 private medical opinion found that the Veteran was 100 percent disabled (permanent and total in nature) and that his service-connected disabilities were sufficient, without regard of other factors, to prevent performing the mental/physical tasks required to get or keep substantially gainful employment, the Board finds that such conclusion lacks a supporting rationale; therefore, it is of limited probative value. Moreover, it is inconsistent with the additional evidence of record, including multiple VA examinations which found no resulting functional impact upon the Veteran’s ability to work due to his diabetes mellitus or its complications. (Continued on Next Page) Following a review of the probative evidence of record, including as discussed above, the Board finds that the preponderance of the evidence of record weighs against the Veteran’s claim of entitlement to an earlier effective date prior to June 21, 2016 for the grant of TDIU. Notably, the evidence of record is inconsistent as to the extent of the functional impact resulting from the Veteran’s service-connected disabilities. Moreover, the SSA finding of disability was based in part upon a nonservice-connected back disorder, which cannot support a finding of TDIU. Given the above, the Board concludes that the preponderance of evidence does not support that the Veteran was completely precluded from securing or following a substantially gainful occupation due to his service-connected disabilities prior to June 21, 2016. As such, there is no reasonable doubt to be resolved, and the claim must be denied. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Chad Johnson, Counsel