Citation Nr: 18156691 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-38 914 DATE: December 10, 2018 ORDER Entitlement to an increased rating for coronary artery disease, currently rated as 30 percent disabling is denied. REMANDED Entitlement to service connection for left hand disorder, claimed as arthritis bilateral hands and left wrist arthritis is remanded. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. Entitlement to a total disability rating due to individual unemployability for service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s coronary artery disease has been manifested by no more than a workload of 5 METs but not greater than 7 METs and evidence of cardiac hypertrophy and dilatation; additionally, there has not been competent evidence of acute congestive heart failure in the past year, a 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. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for coronary artery disease have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.104, DC 7005 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1967 to January 1970. In a September 2009 Board decision, the Board denied the Veteran’s claims for increased ratings for service-connected polyarthralgia and arteriosclerotic heart disease with angina (coronary artery disease), and referred the June 2002 claims for service connection for arthritis of the back and joints for adjudication by the AOJ. In an August 2013 rating decision, the RO increased the rating for coronary artery disease from 10 percent disabling to 30 percent disabling and granted service connection for status post laminectomy with degenerative disc disease of the lumbar spine, degenerative arthritis of the right and left shoulder, degenerative arthritis of the cervical spine, degenerative arthritis of the right hand, and residual scar formation status post laminectomy with degenerative disc disease of the lumbar spine, and status post arthroscopic surgery of the right and left shoulder. The August 2013 rating decision denied, in pertinent part, service connection for peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, degenerative arthritis of the left hand, and TDIU. In November 2013, the Veteran submitted a claim for increased compensation based on unemployability. In an August 2014 rating decision, the RO continued the 30 percent disability rating for coronary artery disease, and proposed to sever service connection for status post laminectomy with degenerative disc disease lumbar spine, degenerative arthritis of the cervical spine, degenerative arthritis of the right and left shoulder, degenerative arthritis of the right hand, and residual scar formation status post laminectomy with degenerative disc disease of the lumbar spine, status post arthroscopic surgery of the right and left shoulder. The RO also denied entitlement to TDIU and continued the denial of service connection for left hand arthritis, peripheral neuropathy of the right and left lower extremity, and a rating in excess of 30 percent for coronary artery disease. In response to the August 2014 rating decision, the Veteran, in a September 2014 statement, requested a hearing regarding the proposals to sever service connection for the above-mentioned disabilities. The Veteran submitted a September 2014 notice of disagreement with the denials of service connection for left hand arthritis, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left lower extremity, a rating in excess of 30 percent for coronary artery disease, and entitlement to TDIU. A statement of the case (SOC) was issued in July 2016 and the Veteran filed a Form 9 substantive appeal in August 2016 where he declined to have an optional Board hearing. In response to the Veteran’s September 2014 request for a hearing before the Board regarding the proposals to sever service connection, the RO scheduled him for a Board hearing in October 2015. In an October 2015 statement, the Veteran stated he was unable to attend the scheduled hearing. In an October 25, 2015 statement, the Veteran stated that due to his medical disorder and use of a scooter, he would be willing to attend a hearing if it was in the afternoon and handicapped accessible. In response to the Veteran’s request, the RO scheduled a Board hearing for the afternoon session in December 2015. The hearing transcript reflects that after introductions were made and the purpose for the hearing was stated, the RO requested to go off the record for a minute and the hearing ended. In a February 2016 rating decision, service connection was severed for status post laminectomy with degenerative disc disease lumbar spine, degenerative arthritis of the cervical spine, degenerative arthritis of the right and left shoulder, degenerative arthritis of the right hand, and residual scar formation status post laminectomy with degenerative disc disease of the lumbar spine, and residual scar formation status post arthroscopic surgery of the right and left shoulder effective May 1, 2016. The Veteran did not file a notice of disagreement with the February 2016 rating decision severing service connection, therefore those issues are not before the Board. In June 2018, the Veteran submitted a new claim for service connection for a back disorder, neck disorder, and bilateral leg disorder secondary to a back disorder. In an August 2018 correspondence to the Veteran, the AOJ informed him the June 2018 claims were already on appeal. The Board notes that these issues were not appealed by the Veteran after the February 2016 rating decision that severed service connection. Therefore, these issues are referred back to the AOJ. 1. Entitlement to an increased rating for coronary artery disease, status post stent placement and myocardial infarction, to include shortness of breath, currently rated as 30 percent disabling Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, and the entire history of the veteran's disability. 38 C.F.R. § 4.1 (2018); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The Veteran's cardiac disability has been rated as 30 percent disabling pursuant to Diagnostic Code 7005. 38 C.F.R. § 4.104 (2018). Under DC 7005, a 30 percent evaluation is warranted where there is workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; or, where there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray. A 60 percent evaluation is warranted where there is evidence of 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 resulting in dyspnea, fatigue, angina, dizziness or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Finally, a 100 percent evaluation is warranted where there is chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. One MET (metabolic equivalent) is defined as 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 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). A review of VA Salisbury treatment records reflects that a May 24, 2012 stress test showed the Veteran’s METs were 7.0 consistent with activities such as golfing (without a cart), mowing the lawn with a push mower, and heavy yard work such as digging. A May 2014 VA ischemic heart disease (IHD) examination reflects that the Veteran was diagnosed in 2003 and takes continuous medication to treat his disorder. The Veteran has not had coronary bypass surgery, a heart transplant, cardiac pacemaker, or congestive heart failure. There was no evidence of cardiac hypertrophy or dilatation according to a February 2014 chest x-ray which was normal. A July 2013 stress test was negative for ischemia/diagnostic EKG changes, showed no wall motion abnormality, and showed the Veteran had a left ventricular ejection fraction (LVEF) of 71 percent after stress and 58 percent at rest. The examiner diagnosed IHD and stated the Veteran was doing relatively well. Based on a review of the Veteran’s medical treatment records and VA examination a disability rating in excess of 30 percent is not warranted. The evidence fails to show congestive heart failure, workload of 5 METs or less, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent or less at any time during the appeal period, which precludes a rating in excess of 30 percent. REASONS FOR REMAND 1. Entitlement to service connection for left hand disorder, claimed as arthritis bilateral hands and left wrist arthritis is remanded. The Veteran contends that service connection is warranted for left hand arthritis because he asserts the disorder began and was diagnosed in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2018). 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Every veteran shall be taken to have been in sound disorder when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). To rebut the presumption of sound disorder under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304 (b); VAOPGCPREC 3-03, 69 Fed. Reg. 25,178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). A review of the Veteran’s service treatment and personnel records reflects that in May 1969 the Veteran was evaluated by a Medical Board for probable rheumatoid arthritis. According to the report, since entry into service the Veteran had been complaining of increasing stiffness and pain in both wrists, fingers, and knees, especially in the morning and in cold, damp weather. He also had less severe symptoms in his right ankle. The frequency of symptoms was noted as persistent, occurring daily, and varying in severity from week to week. The Veteran was treated intermittently for two years for his arthritis symptoms, and approximately three months prior to the review Board he was hospitalized for recurrent epigastric distress and nausea, and increasing arthritic symptoms. The diagnoses for the Veteran’s disorders were probable systemic arthritis and history of prepyloric peptic ulcer. In the findings, the Medical Board stated the Veteran had probable arthritis and was presently symptomatic but appeared to have full function of all involved joints. Treatment of his arthritis was noted to be complicated by the presence of an associated peptic ulcer disease. The recommendation was to give the Veteran a temporary profile, follow him as an outpatient, and re-evaluate by another Medical Board within six months. The profile lists the previous brief, non-technical diagnosis as systemic arthritis and the revised brief, non-technical diagnosis as rheumatoid arthritis. The profile also states the Veteran had recurrent arthritis that was much worse in the morning than in the evening and that he was unfit for return for full duty. In December 1969, the Veteran was again evaluated by the Medical Board for re-evaluation of his symptoms of “systemic arthritis, probably” and “prepyloric ulcer, history of”. The report notes that since the last review the Veteran complained of substernal pain that was sometimes sharp and constricting, later becoming aggravated by position, activity, and respiration, and his previously described intermittent joint pains remained cyclic in nature and still aggravated by cold, damp weather. Repeat laboratory studies showed negative latex fixation which had previously been positive on two occasions. The final diagnoses were the same as in May, probable systemic arthritis existing prior to enlistment, history of prepyloric peptic ulcer existing prior to enlistment. The Medical Board found the Veteran had remained symptomatic in respect to his probable atypical arthritis but was much less symptomatic with respect to his prepyloric ulcer symptoms, and was therefore not fit for duty. The recommendation was that the Veteran was medically discharged from the Marine Corps with the above diagnoses which existed prior to enlistment. Review of the Veteran’s STRs reflects that while seeking treatment in service for the arthritic symptoms, the Veteran stated on June 2, June 12, and June 16, 1967 that the pain and stiffness in his hands, shoulders, feet, and other joints had been ongoing for 3 to 4 years. Additionally, the Medical Board that recommended the Veteran be discharged due to the disorder also determined it pre-existed service. A July 2013 VA examiner provided a negative opinion on whether the Veteran’s current arthritis symptoms are related to the systemic arthritis/polyarthralgia symptoms he had in service, while noting the STRs showed the disorder pre-existed service. In this case, the Board finds that there is convincing evidence that demonstrates that the Veteran likely suffered from symptoms of systemic arthritis/polyarthralgia in his hands, feet, shoulders, and various other joints prior to entry to service. To date, no opinion has been provided on whether there is clear and unmistakable evidence that the Veteran’s systemic arthritis/polyarthralgia pre-existed service, and if so whether there is clear and unmistakable evidence that the disease or injury was not aggravated by service, or any increase in disability was due to the natural progression of the disorder. See Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Therefore, on remand a VA opinion should be sought to address this issue. 2. Entitlement to service connection for peripheral neuropathy of the left lower extremity is remanded. A review of the record shows that in July 2018, the Veteran was afforded a VA peripheral neuropathy examination. As the VA examination is new evidence related to the claim, was not reviewed by the AOJ, and a waiver of AOJ review was not submitted, the Board therefore remands this matter for AOJ consideration of the additional evidence and the issuance of an SSOC pursuant to 38 C.F.R. § 19.31 (2018). 3. Entitlement to service connection for peripheral neuropathy of the right lower extremity is remanded. A review of the record shows that in July 2018, the Veteran was afforded a VA peripheral neuropathy examination. As the VA examination is new evidence related to the claim, was not reviewed by the AOJ, and a waiver of AOJ review was not submitted, the Board therefore remand this matter for AOJ consideration of the additional evidence and the issuance of an SSOC pursuant to 38 C.F.R. § 19.31 (2018). 4. Entitlement to a total disability rating due to individual unemployability for service-connected disabilities (TDIU) is remanded. As there are unresolved issues that bear on entitlement to TDIU, the Board finds that the Veteran's claim of entitlement to TDIU is inextricably intertwined with the issue being remanded. Therefore, the Board finds that remanding the claim for TDIU for contemporaneous consideration is also warranted. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Issue an SSOC with regard to the issues of entitlement to service connection for left lower extremity peripheral neuropathy and right lower peripheral neuropathy that includes consideration of the July 2018 VA examination. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s left hand disorder, claimed as arthritis. The claims file must be made available to the examiner for review and all indicated test should be performed. The examiner should opine whether the Veteran’s left hand disorder clearly and unmistakably pre-existed his active service beginning April 1967. (i) If the examiner concludes that the left hand disorder clearly and unmistakably pre-existed service, the examiner is asked to opine as to whether the pre-existing left hand disorder clearly and unmistakably did not undergo an increase in the underlying pathology (i.e., was not aggravated) during service. If there was an increase in the severity of the Veteran's left hand disorder in service, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (ii) The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's left hand disorder is related to his military service. 4. Thereafter, the AOJ should readjudicate the issues on appeal, to include TDIU. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel