Citation Nr: 18156558 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-43 916 DATE: December 11, 2018 ORDER Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus, is denied. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss is denied. Entitlement to a compensable rating for malaria is denied. Entitlement to an initial rating in excess of 60 percent for coronary artery disease is denied. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus is denied. Entitlement to an effective date earlier than December 31, 2014, for the grant of service connection for diabetes mellitus is denied. Entitlement to an effective date earlier than December 31, 2013, for the grant of service connection for coronary artery disease is denied. Entitlement to an effective date earlier than December 31, 2014, for bilateral hearing loss is denied. Entitlement to an effective date earlier than April 15, 1971, for the grant of service connection for malaria is denied. FINDINGS OF FACT 1. The Veteran does not currently have lower extremity peripheral neuropathy. 2. The VA audiological evaluation shows hearing impairment no worse than Level IV hearing in the right ear and Level VI hearing in the left ear during the appeal period. 3. The Veteran does not have active malaria or any current residuals of malaria affecting a bodily system. 4. Veteran’s coronary artery disease is not manifested by chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 5. The Veteran’s diabetes mellitus has required, at most, an oral hypoglycemic agent and a restricted diet, but not insulin or regulation of activities. 6. A claim for service connection for diabetes mellitus was not received prior to December 31, 2014. 7. A claim for service connection for coronary artery disease was not received prior to December 31, 2014. 8. A claim for bilateral hearing loss was not received prior to December 31, 2014. 9. The claim for an earlier effective date for the grant of service connection for malaria filed in July 2016 constitutes a freestanding claim, which is barred as a matter of law. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus have not been met. 38 U.S.C. § 5107; 38 C.F. R. § 3.303. 2. The criteria for an initial rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. 3. The criteria for a compensable rating for malaria have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.88b, Diagnostic Code 6304. 4. The criteria for an initial rating in excess of 60 percent for coronary artery disease have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. 5. The criteria for entitlement to an initial rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.119, Diagnostic Code 7913. 6. The criteria for an effective date earlier than December 31, 2014, for the grant of service connection for diabetes mellitus have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. 7. The criteria for an effective date earlier than December 31, 2013, for the grant of service connection for coronary artery disease have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. 8. The criteria for an effective date earlier than December 31, 2014, for the grant of service connection for bilateral hearing loss have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. 9. An effective date earlier than April 15, 1971, for the grant of service connection for malaria, is dismissed. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1968 to November 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision. An August 2016 Decision Review Officer (DRO) decision assigned a 60 percent rating for coronary artery disease and assigned an earlier effective date of December 31, 2013, for the grant of service connection for the disorder. The issues on appeal were last adjudicated in an August 2016 Statement of the Case (SOC). Since then, VA obtained and associated with the claims file additional VA treatment records; however, they are not pertinent to the issues to be decided herein. Accordingly, remand is not required for initial RO consideration of this evidence. Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). A disability may also be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.310(a), (b). In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 1. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes mellitus The Veteran is seeking service connection for bilateral lower extremity peripheral neuropathy, however, there is conflicting evidence as to the diagnosis of a current disability. A June 2014 VA podiatry consult record shows a diagnosis of neuropathy of the feet. No rationale was provided for this diagnosis. In contrast, following VA diabetes examination in August 2015, the examiner determined that there was no evidence of diabetic neuropathy. The examiner noted that the Veteran had complaints of pain in the feet prior to the onset of diabetes. Moreover, physical examination of the lower extremities revealed that the Veteran’s sensory was intact bilaterally to vibration and monofilament. Peripheral pulses were palpable and deep tendon reflexes were symmetric. The August 2015 VA examination report is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran’s entire claims file, in consideration of the Veteran’s reported history and contemporaneous physical evaluation of the Veteran. The examiner based the opinion on review and evaluation of the record and specifically cited to the June 2014 podiatry consult when rendering an opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). As there is no competent evidence of a current diagnosis of bilateral lower extremity peripheral neuropathy, there is no basis on which the claim for service connection for this disorder may be granted. See Brammer, 3 Vet. App. at 225. It is therefore unnecessary to address any other element of service connection. Accordingly, the appeal on this issue is denied. 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 rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 2. Entitlement to an initial rating in excess of 20 percent for bilateral hearing loss Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained on audiometric evaluation. Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000; 2,000; 3,000; and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the rating schedule establishes eleven auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Diagnostic Code 6100. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz (Hz)) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). In instances where, because of language difficulties, inconsistent speech discrimination scores, etc., the examiner certifies that the use of speech discrimination scores is inappropriate, Table VIA is to be used to assign a rating based on puretone averages. 38 C.F.R. § 4.85(c). Disability evaluations for hearing loss are determined by a mechanical application of the criteria contained in Table VI and Table VII. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). On August 2015 VA audiometric testing, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 40 60 65 65 LEFT 30 70 70 70 75 The average decibel loss in the right ear was 57.5 and in the left ear was 71.25. The examiner determined that the use of speech discrimination test was not appropriate in either ear because of language difficulties, cognitive problems, inconsistent word recognition scores, etc. that make the combined use of pure tone average and word recognition scores inappropriate. In this case, Table VI is used due to certification that the use of speech discrimination testing is not appropriate for this Veteran. Table VI is also appropriate for the left ear as an exceptional pattern of hearing loss was demonstrated. Accordingly, the audiometric findings from the August 2015 examination correspond to Level IV in the right ear and Level VI in the left ear. 38 C.F.R. § 4.85, Table VIA. Intersecting Levels IV and VI under Table VII results in a 20 percent rating. Moreover, the Veteran does not report any unusual symptomatology that would be outside the type of symptoms and functional effects contemplated and compensated by VA’s schedular rating criteria for hearing loss. The evidence of record fails to show that the Veteran’s hearing loss disability warrants a higher initial rating. 3. Entitlement to a compensable rating for malaria The Veteran is currently in receipt of a noncompensable rating for his service-connected malaria under 38 C.F.R. § 4.88b, Diagnostic Code 6304, and seeks a compensable rating. Under Diagnostic Code 6304, malaria is rated as 100 percent disabling when it is an active disease. According to the note associated with the diagnostic code, residuals such as liver or spleen damage are thereafter evaluated under the appropriate system. The diagnosis of malaria depends on the identification of the malarial parasites in blood smears. Relapses must also be confirmed by the presence of malarial parasites in blood smears. Id. The Veteran was provided with VA examination in August 2015. The examiner noted that Veteran’s diagnosed malaria had not been active since service, did not result in any symptoms, did not result in any residuals, and did not impact his ability to work. The evidence of record does not show that the Veteran has active malaria, or any residuals symptoms related. Without sufficient evidence of the active disease of malaria, or residual disability, the criteria for a compensable rating for malaria have not been met at any point during the pendency of the claim. The claim is denied. 4. Entitlement to an initial rating in excess of 60 percent for coronary artery disease The Veteran’s coronary artery disease is rated under Diagnostic Code 7005. See 38 C.F.R. § 4.104. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; 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 maximum rating is warranted for chronic congestive heart failure, or; 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. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters 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. 38 C.F.R. § 4.104, Note (2). On VA heart examination in August 2015, previous myocardial infarctions were noted, however, the Veteran did not have congestive heart failure or cardiac arrhythmia. He did take continuous medication for his coronary artery disease. Physical examination showed no peripheral edema. Diagnostic tests revealed no evidence of cardiac hypertrophy or dilation. A December 2014 echocardiogram report revealed a left ventricular ejection fraction of 45-49 percent. The examiner reported that cardiac testing was medically contraindicated for exam purposes as METs are easily estimated based on known disease, level of physical activity and reported symptoms. A METs of 5-7 was given based on objective of heart disease only. The examiner noted that the Veteran did not have any other complications related to the coronary artery disease. Based on the forgoing, the Board concludes that the Veteran’s cardiac disability is manifested by METs of no less than 5 and left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent, as is contemplated by the pertinent rating criteria for a 60 percent rating. The evidence of record indicates that the Veteran has not demonstrated chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent, as is required for a 100 percent rating. As such, the Board finds that an initial increased rating is not warranted for the Veteran’s service-connected coronary artery disease. 5. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus The Veteran’s diabetes mellitus is rated under the provisions of Diagnostic Code 7913. Pursuant to Diagnostic Code 7913, a rating of 20 percent is assigned for diabetes requiring insulin and a restricted diet or an oral hypoglycemic agent and a restricted diet. A 40 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted when the diabetes requires insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when the diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. 38 C.F.R. § 4.119. Because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the next higher rating must be met to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). In addition, a 40 percent rating under Diagnostic Code 7913 requires medical evidence that occupational and recreational activities have been restricted by diabetes. Camacho v. Nicholson, 21 Vet. App. 360, 363-65 (2007). Note 1 to Diagnostic Code 7913 provides that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent rating, and that noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. On VA diabetes mellitus examination in July 2013, the examiner noted that the Veteran’s diabetes was managed by prescribed oral hypoglycemic agents. There was no regulation of activities as part of medical management of diabetes mellitus. The Veteran visited his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times a month. The Veteran had not been hospitalized for his diabetes mellitus and had no episodes of hypoglycemia. He did not have loss of strength or weight attributable to diabetes mellitus. He did not have any complications as result of his diabetes mellitus. Because the evidence of record shows that the Veteran’s diabetes mellitus does not require the use of insulin and regulation of activities at any point in time during the course of the appeal, the Board finds that the Veteran’s current diabetes mellitus symptoms do not more closely approximate the rating criteria for a rating in excess of 20 percent under Diagnostic Code 7913. Additionally, there is no evidence of any complications related the Veteran’s service-connected diabetes mellitus. For these reasons, an initial rating in excess of 20 percent for diabetes mellitus is not warranted. Effective Date The effective date of an evaluation and award of compensation based on an original claim or a claim based on presumptive service connection will be, inter alia, the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. §§ 3.400(b)(2)(i), (ii). VA has promulgated special rules for the effective dates for the grant of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). A Nehmer class member is defined as a Vietnam veteran who has been diagnosed with a disorder presumptively-associated with herbicide exposure, to include diabetes and ischemic heart disease. Certain effective dates apply if a Nehmer class member was denied compensation for such a disorder between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law. See 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c) (1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Diabetes was added to the list of diseases subject to service connection on a presumptive basis, effective May 8, 2001. See 69 Fed. Reg. 31,882 (June 8, 2004). Ischemic heart disease, to include coronary artery disease, was added to the list of presumptive disabilities effective August 31, 2010. See 75 Fed. Reg. 53,202 (August 31, 2010). In this regard, 38 C.F.R. § 3.816(c)(2) provides that, if a Nehmer 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 that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. In the situations in (2), the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(1), (c)(2). Service connection for diabetes mellitus and for coronary artery disease was established on a presumptive basis based on exposure to herbicide agents during such service. As such, the Veteran is a Nehmer class member. 6. Entitlement to an effective date earlier than December 31, 2014, for the grant of service connection for diabetes mellitus The RO has assigned an effective date of December 31, 2014, for the award of service connection for the Veteran’s diabetes mellitus, which is the date of receipt of the claim. The medical evidence of record indicates a diagnosis of diabetes mellitus since November 2014. Thus, the Veteran did not meet all eligibility criteria for service connection for diabetes, specifically, a diagnosis of diabetes, on the effective date of the liberalizing law that allows presumptive service connection for diabetes based on herbicide exposure, or May 8, 2001, and continuously through the date his claim was received. As such, he does not meet the criteria for retroactive payment. Further, prior to December 31, 2014, the date of the Veteran’s claim, there is no document of record that may reasonably be construed as a formal or informal claim for service connection for diabetes mellitus. Therefore, the earliest possible effective date for the award of service connection for diabetes mellitus is December 31, 2014, the date the Veteran’s claim for service connection was filed. 7. Entitlement to an effective date earlier than December 31, 2013 for the grant of service connection for coronary artery disease The Veteran’s original claim for coronary artery disease was received by VA on December 31, 2014. In an August 2015 rating decision, the RO initially assigned an effective date of December 31, 2014, for the grant of service connection for coronary artery disease. However, in an August 2014 DRO decision, the RO assigned an earlier effective date of December 31, 2013 for grant of service connection for coronary artery disease. Because treatment records showed that the Veteran had coronary artery disease at the time of the liberalizing regulation, the RO assigned the earliest possible effective date under the law, which is one year prior to the date of receipt of the Veteran’s claim. Therefore, an effective date earlier than December 31, 2013, is not warranted. 8. Entitlement to an effective date earlier than December 31, 2014, for bilateral hearing loss The record shows that the Veteran’s claim for service connection bilateral hearing loss was received by VA on December 31, 2014. There are no additional documents of record that could be construed as a claim for service connection for hearing loss received prior to December 31, 2014. Thus, the first document asserting a claim for service connection for bilateral hearing loss was received by VA on December 31, 2014, which is more than one year following the Veteran’s separation from active service. In light of the facts presented above, the Board finds that the appropriate effective date for the award of service connection for PTSD is December 31, 2014, the date the claim was received by VA. Accordingly, an earlier effective date is not authorized by law and the Veteran’s claim must be denied. 9. Entitlement to an effective date earlier than April 15, 1971, for the grant of service connection for malaria In a November 1971 rating decision, the RO granted an effective date of April 15, 1971, for the award of service connection for malaria. No appeal was taken from the November 1971 rating decision grant of an effective date of April 15, 1971. As such, that determination is final. 38 U.S.C. § 7105. The current claim arises from a July 2016 request from the Veteran for entitlement to an effective date earlier than April 15, 1971, for the award of service connection for malaria. The method for overcoming the finality of a decision is a request for revision based on clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). Otherwise, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). As the November 1971 rating decision is final, the Veteran’s July 2016 claim for an effective date earlier than April 15, 1971, for the grant of service connection for malaria is a freestanding claim. Id. As it is freestanding, the claim must be dismissed. M. Donohue Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel