Citation Nr: 18154370 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 17-59 221 DATE: November 29, 2018 ORDER Entitlement to service connection for bilateral lower extremity peripheral vascular disease due to herbicide exposure is granted. Entitlement to service connection for left leg amputation below the knee secondary to peripheral vascular disease is granted. Entitlement to an initial rating in excess of 30 percent for coronary artery disease status coronary artery bypass graft is denied. Entitlement to a compensable rating for scar residual of coronary artery bypass graft is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence is sufficient to show that the Veteran’s peripheral vascular disease of the bilateral lower extremities is related to herbicide exposure in service. 2. The evidence is sufficient to show that the Veteran’s left leg amputation below the knee is proximately due to his service-connected peripheral vascular disease of the bilateral lower extremities. 3. The Veteran’s coronary artery disease status post coronary artery bypass graft manifested in no worse than a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea and fatigue. 4. The evidence is insufficient to show that the Veteran’s scar residual of coronary artery bypass graft is pain or unstable. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral lower extremity peripheral vascular disease are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.307, 3.309. 2. The criteria for entitlement to service connection for left leg amputation below the knee have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (c), 3.310. 3. The criteria for entitlement to an initial 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, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7017. 4. The criteria for a compensable rating for scar residual of coronary artery bypass graft have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.97, 4.118, DCs 7802, 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from 1965 to September 1967. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). Service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may also be granted for specific diseases associated with exposure to herbicide agents. 38 C.F.R. § 3.309(e). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, despite any lack of evidence of such disease during service provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 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(a)(6). For the purposes of § 3.307, 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 Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). A veteran must have been present on the landmass or inland waterways of Vietnam at some point during his or her military duty to be entitled to the presumption of herbicide exposure. Haas v. Peake, 525 F.3d 1168 (2008). Notwithstanding the foregoing presumptive provisions, a claimant is not precluded from establishing service connection for a disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, the evidence shows the Veteran served in Vietnam during the required period. As such, herbicide exposure is presumed. 1. Entitlement to service connection for bilateral lower extremity peripheral vascular disease due to herbicide exposure. The evidence shows a current disability of bilateral peripheral vascular disease (PVD). See VA Treatment Records. The issue that remains disputed is whether the Veteran’s current disability is related to service or to herbicide exposure. In a July 2017 medical opinion, private physician Dr. E.W.A. opined that the Veteran’s bilateral lower extremity peripheral vascular disease was at least as likely as not caused by herbicide exposure in service. In support of her opinion, Dr. E.W.A. explained that the risk factors identified in the development of PVD include smoking, diabetes, unhealthy cholesterol and lipid levels, high blood pressure, and advancing age. She noted that the Veteran is a non-smoker, does not have diabetes and developed atherosclerotic condition at an early age. The Veteran was diagnosed with PVD and underwent aortic bi-femoral bypass surgery in 1980, which is normally occasioned by atherosclerosis. In essence, there is documented evidence of atherosclerosis developing within 13 years of separation from service. She further notes that early occurrence and management of PVD is rare. The onset of peripheral arterial occlusion before the age of 50 is so rare that it affects only 1 percent of the population. Dr. E.W.A. asserts that the common thread in the Veteran’s medical history is his exposure to Agent Orange in Vietnam. She indicated that Agent Orange contains highly toxic dioxins that have been shown to cause diabetes, several types of cancer, CAD, autoimmune diseases. Exposure to dioxins may cause adverse health outcomes years and even decades after initial exposure. Dr. E.W.A. acknowledged that it is not possible to determine the amount of exposure the Veteran may have sustained in Vietnam but notes that based on a review of the claims file in addition to his duties as a supply officer and executive officer he frequently led patrols into the jungle. It is common knowledge that defoliation with Agent Orange was widely used. Finally, Dr. E.W.A. stated, “If we accept the premise that the presence of a risk factor, i.e., dioxin exposure . . . which increases the risk of atherosclerosis as evidence of causation, it would seem as likely as not that the Veteran’s peripheral vascular disease of the lower extremities with below the knee amputation of the left lower extremity was caused by his exposure to Agent Orange.” The Board finds Dr. E.W.A.’s opinions adequate and highly probative to the question at hand. She possessed the necessary education, training, and expertise to provide the requested opinion. In addition, Dr. E.W.A. provided an adequate rationale for the opinion and cited numerous medical and scientific sources in support of her conclusion. The opinion considered an accurate history, was definitive and supported by a detailed rationale that considered the lay and medical evidence. Thus, the evidence is sufficient to show that the Veteran’s bilateral lower extremity peripheral vascular disease is related to herbicide exposure in service. Service connection for peripheral vascular disease of the bilateral lower extremities is granted. 2. Entitlement to service connection for left leg amputation below the knee. The evidence shows that the Veteran’s left leg amputation occurred as a result of his peripheral vascular disease. In an October 2016 VA medical opinion, the examiner noted that VA treatment records indicate that the Veteran had aortic bifemoral bypass surgery in 1980 due to his peripheral vascular disease. Due to a non-healing ulcer of his left foot, the Veteran developed an infection that resulted in a left below-the-knee amputation in 2014. The examiner concluded that the basis for the Veteran’s non-healing ulcer of his left foot that ultimately led to his below the knee amputation of the left leg was his peripheral vascular disease. Similarly, in the July 2017 private medical opinion, Dr. E.W.A. indicates that the Veteran’s left leg amputation was caused by peripheral vascular disease of the bilateral lower extremities. As the decision herein grants service connection for peripheral vascular disease of the bilateral lower extremities, service connection on a secondary basis is warranted. Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code (DC) depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. 3. Entitlement to an initial rating in excess of 30 percent for coronary artery disease status post coronary artery bypass graft. The Veteran asserts that his coronary artery disease (CAD) status post coronary artery bypass graft is more disabling than reflected in his current 30 percent rating. The Veteran’s CAD is currently rated under 38 C.F.R. § 4.104, DC 7017 for coronary bypass surgery. Under DC 7017, a 30 percent rating is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted under DC 7017 when there is chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A 100 percent evaluation is also warranted under DC 7017 for 3 months following hospital admission for coronary bypass surgery. For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters 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 for disability rating purposes. 38 C.F.R. § 4.104. The Veteran submitted a heart condition disability benefits questionnaire (DBQ) dated March 2016. The DBQ indicated that the Veteran’s heart condition required continuous medication. There was no evidence of myocardial infarction, congestive heart failure, cardiac arrhythmia, a heart valve condition, or an infectious cardiac condition. There was no evidence of pericardial adhesions. A physical examination showed a normal heart beat. There was no evidence of cardiac hypertrophy and cardiac dilation. The medical service provider also noted that the Veteran’s January 2014 EKG and December 2015 chest x-rays were both normal. Regarding an interview-based METs test, the medical service provider indicated that exercise was problematic due to the Veteran’s amputation. The Veteran was afforded a VA examination in July 2016. The Veteran required continuous medication for control of his heart. The Veteran had no history of myocardial infarction or congestive heart failure. There was no arrhythmia, valve conditions, infectious heart conditions, or pericardial adhesions. The Veteran underwent a coronary artery bypass surgery in 2006 but did not have any other hospitalizations for treatment of his heart condition. He showed a regular heart rhythm. There was no evidence of cardiac hypertrophy or cardiac dilation. An echocardiogram showed left ventricular ejection fraction of 53 percent with normal left ventricular systolic function, wall motion and normal wall thickness. The Veteran had a workload greater than 5 – 7 METs. The Veteran reported dyspnea and fatigue with activities such as walking 1 flight of stairs, gulfing without a cart, pushing a lawn mower, and heavy yard work such as digging. The METs level limitation was solely due to the Veteran’s coronary artery disease. A November 2015 VA treatment note indicates the Veteran denied chest pain, angina and palpations. Similarly, a February 2017 VA treatment note indicates that the Veteran denied chest pain, angina, palpations, and syncope. Physical examinations consistently showed regular heart rate and rhythm. The Veteran’s coronary artery disease symptoms more nearly approximate the criteria for a 30 percent rating. The evidence shows that the Veteran’s coronary artery disease manifested in no worse than a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea and fatigue. The evidence is silent for congestive heart failure, workload of greater than 3 METs but not greater than 5 METs or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. As such, a 60 percent rating under DC 7017 is not warranted. The Board has also considered whether application of different diagnostic code is appropriate. Notably, Diagnostic code 7005 provides the criteria for coronary artery disease. However, the criteria for DC 7005 is essentially the same as the criteria for DC 7017. Thus, although DC 7005 is applicable there is no basis for a rating in excess of 30 percent. Furthermore, the record is silent for valvular heart disease, endocarditis, pericarditis, pericardial adhesions, syphilitic heart disease, myocardial infarction, hypertensive heart disease, hyperthyroid heart disease, arrhythmias, atrioventricular block, heart valve replacement, implantable cardiac pacemakers, cardia transplantation, or cardiomyopathy to warrant rating under an alternative diagnostic code. See 38 C.F.R. § 4.104, DCs 7000 – 7004, 7006 – 7006, 7018-7020. Finally, the Board has considered the Veteran’s attorney’s assertion that the claim should be remanded to allow the regional office (RO) to consider rating the Veteran’s coronary artery disease on an extraschedular basis. See March 2018 Correspondence. Specifically, the Veteran’s attorney asserts that the combined effects of the Veteran’s coronary artery disease and peripheral vascular disease cause some level of impairment and because the RO has not yet awarded an initial rating the issue must be remanded. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extraschedular rating. See also 38 C.F.R. § 3.321(b)(1). The Board finds that the Veteran’s coronary artery disease does not present such an exceptional disability picture that the available schedular evaluations for his service-connected disability are inadequate. The Veteran’s coronary artery disease status post coronary artery bypass graft are contemplated by the rating schedule and reflected in his rating under DC 7017. Thus, referral for extraschedular consideration is not warranted. In sum, a rating in excess of 30 percent for coronary artery disease status post coronary artery bypass graft is not warranted. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to a compensable rating for scar residual of coronary artery bypass graft. The Veteran asserts that his scar residual of coronary artery bypass graft is more disabling that reflected in his current noncompensable rating. The Veteran’s scar is currently rated under DC 7805. DC 7805 applies to other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under DC 7800 through 7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. 4.118, DC 7805. Under DC 7805, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. at Note (1). If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id. at Note (2). Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. at Note (3). In addition, Diagnostic Code 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. Under this provision, a maximum schedular evaluation of 10 percent is warranted for scars with an area or areas of 144 square inches (929 sq. cm.) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. The March 2016 heart DBQ indicates the Veteran had a scar related to his heart procedure but indicated that the scar was not painful and/or unstable and did not have a total area greater than or equal to 6 square inches. The July 2016 VA examination also indicates that the Veteran has a 17cm x 0.5cm midsternal scar that is painful nor unstable. The preponderance of the evidence shows the Veteran’s midsternal scar residual of his coronary artery bypass graft more nearly approximates the criteria for a noncompensable rating. As there is no evidence to show the scar is pain for unstable a compensable rating under DC 7805 is not warranted. In addition, there is no evidence to show that the Veteran’s scar is 144 square inches or greater to warrant a 10 percent rating under Diagnostic Code 7802. Thus, a compensable rating is not under DC 7802 warranted. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was afforded a VA audiological evaluation in July 2016. The examiner opined that the Veteran’s bilateral hearing loss is less likely as not related to service. The examiner reasoned that there is no evidence in the record that the Veteran sustained noise injuries based on his service audiograms. If there is current hearing loss, there is no basis to conclude that this hearing loss was causally related to military service. The examiner further noted that the Institute of Medicine (2006) reported that based on current understanding of auditory physiology, hearing loss from noise injuries occurs immediately following exposure. The Institute of Medicine stated there is no scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after such noise exposure. Therefore, there is no scientific basis to conclude that the current hearing loss was caused by or the result of military service, to include military noise exposure. In a March 2018 correspondence, the Veteran – through his attorney – asserts that the July 2016 examiner relied on outdated medical information. The Veteran submitted a 2009 study that suggests that noise exposure is associated with accelerated age-related hearing loss even after the exposure has ended. Thus, an addendum medical opinion considering this new evidence is warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran’s combined disability rating is 30 percent. He currently does not meet the criteria for schedular TDIU. As the decision herein grants service connection for bilateral peripheral vascular disease and left leg amputation, remand is required pending evaluation of peripheral vascular disease and left leg amputation. In addition, TDIU is inextricably intertwined with the other issues being remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, a decision on the issues of a TDIU must be deferred until after the outcome of his other claim. The matters are REMANDED for the following action: 1. Return the claims file to examiner who provided the July 2016 opinion (or another qualified examiner if unavailable), to provide an addendum opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s bilateral hearing loss had its onset in service, is related to noise exposure in service, or manifested to a compensable degree within one year of separation. The examiner needs to discuss the 2009 medical study included in the March 2018 correspondence in providing the opinion. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel