Citation Nr: 18156800 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 15-34 899 DATE: December 11, 2018 ORDER Entitlement to service connection for diabetes mellitus as a result of herbicide agent exposure is granted. Entitlement to a disability rating in excess of 30 percent for arteriosclerotic heart disease status post myocardial infarction is denied from December 19, 2014 to April 1, 2018. Entitlement to a temporary 100 percent disability rating is granted from April 2, 2018 to August 1, 2018. Entitlement to a disability rating of 60 percent is granted as of August 1, 2018. REMANDED Entitlement to service connection for glaucoma as secondary to diabetes mellitus is remanded. FINDINGS OF FACT 1. The Veteran served in the U.S. Army from 1966 to 1968 and was deployed to the Republic of Vietnam, earning the Vietnam Campaign and Vietnam Service Medals. The VA conceded herbicide exposure in a March 2007 Rating Decision. 2. The Veteran has a valid current diagnosis of diabetes mellitus. 3. Effective March 2007, the Veteran was awarded service connection for heart disease due to herbicide agent exposure. 4. From December 19, 2014 to April 1, 2018, the Veteran’s arteriosclerotic heart disease status post myocardial infarction was manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, and syncope. 5. On April 2, 2018, the Veteran suffered a myocardial infarction. 6. Since June 5, 2018 the Veteran’s arteriosclerotic heart disease status post myocardial infarction has been manifested by a workload of greater than 3 METs but not more than 5 METs. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus as a result of herbicide agent exposure have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. From December 19, 2014 to April 1, 2018, the criteria for a disability rating in excess of 30 percent for arteriosclerotic heart disease status post myocardial infarction have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.100, 4.104, Diagnostic Codes 7005, 7006. 3. From April 2, 2018 to August 1, 2018, the Veteran is entitled to a temporary 100 percent evaluation due to his myocardial infarction. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.100, 4.104, Diagnostic Codes 7005, 7006. 4. As of August 1, 2018, the criteria for a disability rating of 60 percent for arteriosclerotic heart disease status post myocardial infarction have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.100, 4.104, Diagnostic Codes 7005, 7006. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from 1966 to 1968 and was deployed to the Republic of Vietnam, earning the Vietnam Campaign and Vietnam Service Medals. 1. Entitlement to service connection for diabetes mellitus as a result of herbicide agent exposure In an April 2015 Rating Decision, the Veteran was denied service connection for diabetes mellitus associated with herbicide agent exposure. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, if a Veteran was exposed to an herbicide agent during active service, certain diseases, including diabetes mellitus, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). The standard of proof to be applied in decisions on claims for Veterans’ benefits is set forth at 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). As an initial matter, the Veteran was already awarded service connection for arteriosclerotic heart disease in March 2007, which was granted on a presumptive basis due to the Veteran’s exposure to herbicide agents in Vietnam. Therefore, the Veteran needs only to establish a valid diagnosis of diabetes mellitus to be awarded service connection for the disease, unless there is affirmative evidence that it is due to another cause. The Board finds that the evidence is at least in equipoise on this point. Service connection was previously denied because the Veteran did not have two separate A1C levels over 6.5 percent or two separate fasting plasma glucose levels over 126. Rather, he had one A1C result over 6.5 percent (6.7 percent in December 2014) and one fasting plasma glucose result over 126 (134 in April 2014). Importantly, the Veteran was only diagnosed with diabetes mellitus by coincidence. Specifically, during a cardiac catheterization in December 2014, lab results unexpectedly showed his A1C level was 6.7 percent. Prior to that, the Veteran had not sought treatment for diabetes or related symptoms. He was then started on Metformin and home blood glucose monitoring and instructed to lose weight and attend diabetes education classes. After the Veteran began taking Metformin and monitoring his blood sugar, his A1C levels were 5.7 percent in May 2015, 6.3 percent in April 2017, and 6.3 percent in February 2018. At that time, the Veteran’s doctor noted the Veteran’s A1C was as “high as it’s ever been,” despite taking Metformin. He further indicated the Veteran’s A1C would likely be over 6.5 percent if he had never been started on Metformin or if he were to stop taking Metformin. He continued to list diabetes mellitus as the Veteran’s diagnosis. Based on the foregoing, the Board finds that the Veteran has established that he has a valid diagnosis of diabetes mellitus. As discussed above, because diabetes mellitus is a disease that is presumptively associated with herbicide agent exposure, the Veteran has satisfied the nexus requirement between his diagnosis and an in-service event or injury. 2. Entitlement to an increased rating for arteriosclerotic heart disease status post myocardial infarction. As a matter of background, the Veteran was originally denied service connection for cardiovascular disease in a December 2007 rating decision. Thereafter, a special review of his claims file was mandated by federal court order in Nehmer v. Department of Veterans Affairs. Based on that review, in an August 2011 rating decision, the Veteran was awarded service connection for arteriosclerotic heart disease status post myocardial infarction associated with herbicide exposure. In that decision, the Veteran was assigned an evaluation of 30 percent effective March 21, 2007, the date of the receipt of his claim for a cardiovascular condition. An evaluation of 100 percent was assigned from May 5, 2010, the date he suffered a myocardial infarction. An evaluation of 30 percent was assigned from September 1, 2010, the first day of the month following three months at 100 percent. At that time, the evidence showed the Veteran’s cardiac workload was 7 METs, so his evaluation was returned to 30 percent. The current appeal comes before the Board of Veterans’ Appeals (Board) from an April 2015 rating decision, which denied the Veteran’s December 2014 claim for an increased evaluation. That rating decision continued the Veteran’s 30 percent rating for arteriosclerotic heart disease status post myocardial infarction. In June 2018, the RO increased the Veteran’s rating to 60 percent with an effective date of May 3, 2018, the date the Veteran filed a new claim for increased evaluation based on an April 2018 myocardial infarction. However, this decision did not discuss the Veteran’s myocardial infarction and focused solely on his current cardiac workload and ejection fraction. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran’s case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed all of the evidence in the Veteran’s electronic file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (The Court) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran’s heart disability has previously been rated under Diagnostic Code 7005, Arteriosclerotic Heat Disease (Coronary Artery Disease). Under this code, evaluations depend, at least in part, on the workload that results in certain symptoms. This workload or functional capacity is expressed in terms of “METs” (metabolic equivalents). 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 (shortness of breath), fatigue, angina (chest pain), 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). A 30 percent rating is assigned where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned where 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, there is left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. A 100 percent rating is assigned with evidence of chronic congestive heart failure, or, a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or, there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Upon review of the pertinent evidence in light of the governing authority, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent prior to April 2018. December 19, 2014 to April 1, 2018. As it pertains to the period from December 19, 2014 to April 1, 2018, the Veteran’s claim for a rating in excess of 30 percent is denied. The Veteran was assigned a 30 percent rating based on a December 2014 evaluation which showed a workload greater than 5 METs, but not greater than 7 METs, need for continuous medication, and a LVEF greater than 50 percent. To establish entitlement to a 60 percent rating, the evidence must show a LVEF of 30-50 percent; more than 1 episode of acute congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs. There is no evidence that meets the criteria for a 60 percent rating during the period from prior to April 2, 2018. For example, at a March 2017 VA follow up, the Veteran reported his symptoms were primarily shortness of breath and dyspnea on exertion, but he was asymptomatic that day. He was continued on his medications and instructed to follow up in one year. April 2, 2018 to August 1, 2018. On April 2, 2018, the Veteran became entitled to a 100 percent temporary rating for 3 months due to the myocardial infarction he suffered on that date. Under Diagnostic Code 7006, Myocardial Infarction, a 100 percent rating is assigned during and for three months following myocardial infarction, documented by laboratory tests. 38 C.F.R. § 4.104, Diagnostic Code 7006 (2006). Here, the Veteran presented to a private hospital on April 2, 2018 complaining of chest pain and shortness of breath. Troponin tests were positive and a coronary angiogram confirmed the Veteran suffered a non-ST-elevated myocardial infarction (n-STEMI). Those tests further revealed significant arterial stenosis necessitating the placement of another drug eluding stent and prescription of lifelong antiplatelet therapy. Based on these findings, the Veteran is entitled to a temporary 100 percent rating from April 2, 2018 and for three months thereafter, or until July 2, 2018. Further, the effective date for the end of the period is first day of the month following expiration of the temporary total rating, in this instance August 1, 2018. Therefore, the Veteran is entitled to the benefit of the total rating from April 2, 2018 to August 1, 2018. August 1, 2018 Forward. As of August 1, 2018, the Veteran is entitled to a 60 percent rating. Diagnostic Code 7006, Myocardial Infarction provides for a temporary 100 percent rating for three months following a myocardial infarction. However, after the three-month period following myocardial infarction the criteria for a 100 percent rating pursuant to Diagnostic Code 7006 are the same as for Diagnostic Code 7005. As such, a 100 percent evaluation may only be assigned when the documented myocardial infarction results in chronic congestive heart failure, or; where a workload of 3 METs (metabolic equivalents) or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7006 (2006). In this case, there is no evidence in the record of any cardiac examinations from after July 2, 2018. However, there is a June 2018 C&P examination, which provided the basis for the 60 percent rating in the June 26, 2018 rating decision. That decision was issued while this appeal was pending before the Board. In the June 2018 rating decision, the Veteran’s rating was increased from 30 percent to 60 percent based on a workload of greater than 3 METs but less than 5 METs resulting in dyspnea, fatigue, dizziness, or syncope. In addition, LVEF was greater than 50 percent. However, there was no discussion of the myocardial infarction the Veteran suffered in April 2018. As discussed above, because of the documented myocardial infarction on April 2, 2018, the Veteran is entitled to a 100 percent rating for three months following that date. The C&P examination took place on June 5, 2018. At that time, an interview-based METs test was conducted and the results showed the Veteran experienced dyspnea, dizziness, and fatigue at METs levels between 3 and 5. Nurse Practitioner L.N. indicated this METs level was consistent with activities such as light yard work (weeding), mowing the lawn (power mower), and brisk walking (4 mph). Nurse Practitioner L.N. further indicated the interview-based METs test was more consistent with the Veteran’s current level of cardiac functioning than the 55 percent LVEF shown in his April 2, 2018 Echocardiogram. Based on these findings, the Veteran was assigned a 60 percent rating effective May 3, 2018. Because the Veteran’s workload was between 3 and 5 METs on June 5, 2018, the Board finds that the Veteran is entitled to a 60 percent rating as of July 3, 2018, the date following the expiration of his temporary, three-month 100 percent rating. The Veteran is not entitled to a 100 percent rating following the expiration of the temporary rating because there is no evidence of chronic congestive heart failure, or, a 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. REASONS FOR REMAND 1. Entitlement to service connection for glaucoma as secondary to diabetes mellitus is remanded. In light of the Board’s grant of service connection for diabetes mellitus, herein, additional development is required prior to determining whether glaucoma is secondary to such. The Veteran has been diagnosed with primary open angle glaucoma and has received treatment in the form of medications and eye drops. However, the record does not contain any opinion evidence that directly addresses whether the Veteran’s glaucoma was caused by his service-connected diabetes mellitus. In addition, a review of the treatment records provides little clarity. For example, during a March 2017 eye examination, the Veteran’s diabetes mellitus was described as “without ocular manifestations or clinically significant macular edema.” However, in that same record, the Veteran was “educated on diabetes and the eye and encouraged to keep tight glycemic control.” The Board is precluded from exercising independent medical judgment. Therefore, remand is required for further development. The matter is REMANDED for the following action: 1. Obtain all outstanding VA and private medical records pertinent to the claim on appeal. 2. Forward the claims file to an appropriate VA examiner to acquire an opinion regarding the etiology of the Veteran’s glaucoma. (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's current glaucoma is (1) due to or (2) aggravated by diabetes mellitus. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew J. Vassallo, Associate Counsel