Citation Nr: 1815145 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 06-05 966 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected diabetes mellitus type II (DM). 2. Entitlement to an initial disability rating in excess of 60 percent for service-connected coronary artery disease (CAD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran had active service from February 1967 until January 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In a July 2006 rating decision, the RO increased the rating for coronary artery disease (CAD) to 60 percent effective the date of service connection. As this increase did not represent the maximum rating available, the issue remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In July 2011, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In February 2012 and February 2017, the Board remanded these claims for additional development. The claims are again before the Board for appellate consideration. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran's type II diabetes mellitus was manifested by requiring insulin, hypoglycemic agents, and a restricted diet, but not regulation of activities. 2. The evidence of record does not demonstrate that the Veteran's coronary artery disease was manifested by congestive heart failure, 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. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for service-connected type II diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.119, Diagnostic Code (DC) 7913 (2017). 2. The criteria for an initial evaluation in excess of 60 percent for ischemic heart disease have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2014); 38 C.F.R. § 4.104, DC 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in July 2011. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. In this regard, the Board also finds that there has been compliance with the prior February 2012 and February 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). II. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The 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 and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. II.A. Diabetes Mellitus, type II The Veteran's DM has been evaluated as 20 percent disabling since April 2003, one year prior to the date of the receipt of his claim of entitlement to service connection. The 20 percent rating is assigned pursuant to DC 7913, which contemplates diabetes that requires insulin and a restricted diet, or oral hypoglycemic agents and a restricted diet. A 40 percent rating is warranted when diabetes requires insulin, restricted diet, and regulation of activities. Regulation of activities is defined by DC 7913 as the avoidance of strenuous occupational and recreational activities. Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007) (citing 61 Fed. Reg. 20,440 (May 7, 1996)). The rating criteria for diabetes are successive; the evaluation for each higher disability rating includes the criteria of each lower disability rating, such that if a component is not met at any one level, the veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2008). Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent rating. Noncompensable complications are deemed part of the diabetic process. 38 C.F.R. § 4.119, DC 7913, Note 1. Before discussing the factual history, the Board notes that separate ratings have already been assigned for stroke with vascular dementia, CAD, peripheral neuropathy of the upper and lower extremities, cataracts, voiding dysfunction, and hypertension. Erectile dysfunction has been deemed part of the diabetic process. Accordingly, other than erectile dysfunction, the Board will not discuss whether increased ratings are warranted for these conditions, as the Veteran has not disagreed with the initial ratings assigned for each particular disorder. As noted above, the Veteran submitted a claim of entitlement to service connection for DM in April 2004. The Veteran submitted private treatment records from January 2004 showing the diagnosis of DM. The Veteran was noted to have seen a dietician for lifestyle changes. Of record is a private physician's statement dated in March 2004. The statement indicates that the Veteran's DM required insulin and restricted diet, or; oral hypoglycemic agent and restricted diet for treatment. VA provided an examination in August 2004. The Veteran was noted to be on a restricted diet. The examiner noted that the Veteran did have restriction of activities that was more so related to pain in his legs. In a February 2005 submission, the Veteran asserted that DM necessitated restricted diet, medication, and regulation of activities. A March 2005 VA examination was conducted. The examiner noted that the Veteran was on a restricted diet and watched his caloric intake. The examiner did not indicate whether there was regulation of activities. May 2005 private treatment records show the Veteran being encouraged to continue with Metformin and glipizide while redoubling his efforts at dietary and exercise changes to help improve weight control. In an October 2005 statement, the Veteran reported that he took more than one oral hypoglycemic agents for treatment of his diabetes, stating that his decision to not take insulin was a life choice. He also reported that he had needed to restrict his diet for treatment purposes. In a statement received in January 2006, the Veteran reported that his DM had worsened and that he had been prescribed insulin, an 1800 calorie diet, and regulation of activities, to include an exercise program that included at least 10,000 steps or walking for one and one-half hours. In addition, a VA examiner in December 2005 had reported that the Veteran was unable to engage in strenuous activities because of shortness of breath. The examiner also noted that the Veteran's numbness of his hands and feet prevented the Veteran from climbing stairs or other activities generally required in the Veteran's previous occupation. In an October 2010 statement, the Veteran's representative argued that the Veteran was entitled to a 40 percent disability rating for DM because the condition required regulation of activities. In support of this argument, the representative asserted that DM caused the Veteran to take an early retirement from his occupation because of DM. In addition, the Social Security Administration had determined the Veteran was disabled as a result of DM. At the July 2011 Board hearing, the Veteran testified that he had been taking insulin by injection since 2004. He had lost approximately 35 pounds, and he testified that he exercised a lot. He described being an outside person, cutting firewood in the woods. However, he testified that his DM had worsened to the point where he was unable to walk on uneven ground. Out in the woods, he seemed to trip and fall a lot. When asked whether doctors had placed limits on any activities, the Veteran testified that he self-limited his activities. He described limitations that were due to shortness of breath. VA provided an examination in May 2012. The examiner annotated that the Veteran's DM required oral hypoglycemic agents and more than one injection of insulin per day. The examiner found that DM was not managed through restricted diet and regulation of activities. The Veteran would visit with his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month. The Veteran had not suffered any episodes of ketoacidosis or hypoglycemia over the previous 12 months. The examiner noted erectile dysfunction that was not ameliorated by medication. The Veteran denied any deformity. VA provided another examination in May 2013. Then, the examiner's findings were the same as those in the VA examination conducted in May 2012. The examiner noted erectile dysfunction that was not ameliorated by medication. The Veteran denied any deformity. The Veteran presented for another examination for DM in July 2014. The Veteran's DM was managed by restricted diet, and he was treating his condition with oral hypoglycemic agents and more than one insulin injection per day. The examiner found that the Veteran's DM required regulation of activities as part of medical management. Explaining, the examiner noted that the Veteran's previous activities as a pipefitter needed to be regulated because of his inability to perform functions requiring balance due to dizziness and shortness of breath with activity. The Veteran indicated that his heart disorder contributed to this as well. Later in the report, the examiner explained that due to insulin injections, the Veteran needed to test blood sugar levels three times per day. He also needed to eat on a regular basis to keep a glucose source with him. The Veteran reported that he was no longer able to work as a pipefitter, as this role required climbing to heights. The Veteran reported he was no longer able to perform those functions due to the risk of hypoglycemia with insulin. The examiner referred to the Veteran's medical records showing that the Veteran started insulin injections in December 2005, explaining that the medical literature supported that injectable insulin could result in the risk of low blood sugar and result in occupational limitations in certain fields which require climbing to heights and operating equipment. The Veteran would visit with his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month. The Veteran had not suffered any episodes of hypoglycemia over the previous 12 month, but the examiner noted that the Veteran had experienced one episode of ketoacidosis in that period. The examiner noted erectile dysfunction that was not ameliorated by medication. The Veteran denied any deformity. VA provided yet another examination for DM in May 2017. The examiner noted that treatment required oral hypoglycemic agents and more than one injection of insulin per day, but did not require the regulation of activities as part of the medical management of DM. The Veteran would visit with his diabetic care provider for episodes of ketoacidosis or hypoglycemic reactions less than two times per month. The Veteran had not suffered any episodes of ketoacidosis or hypoglycemia over the previous 12 months. The examiner noted erectile dysfunction that was not ameliorated by medication. The Veteran denied any deformity. The Board has reviewed the voluminous VA treatment records pertaining to treatment for the Veteran's DM. However, they offer no more insight into his disorder than those sources of evidence discussed above. The competent and credible evidence of record here clearly establishes that the Veteran has been prescribed insulin for diabetes, and a restricted diet is required. He has also taken hypoglycemic agents throughout the appeal period. However, the evidence is against a finding that the Veteran's DM requires the regulation of activities. In this regard, VA examinations conducted in May 2017, May 2013, May 2012, and March 2005 all show the examiners' findings that the Veteran's DM did not require regulation of activities, or the avoidance of strenuous occupational and recreational activities. Indeed, for much the appeal period, the Veteran is documented reporting or being told that he needed to increase his exercise to help with weight loss. In January 2006, the Veteran detailed how he had been provided a weight loss program that included walking recommendations. These all weigh against a finding that a medical professional has prescribed regulation of activities in order to treat the Veteran's DM. The Board acknowledges statements made by VA examiners in December 2005 and July 2014 VA examinations. Although the December 2005 VA examiner reported that the Veteran was unable to engage in strenuous activities because of shortness of breath, he noted that the Veteran's peripheral neuropathy was the disability that prevented the Veteran from climbing stairs or other activities generally required in the Veteran's previous occupation. The July 2014 VA examiner expressly found that regulation of activities was necessary for the DM. Specifically, and as advanced by the Veteran's representative, the Veteran has significant physical limitations as a result of other service-connected disorders, such as peripheral neuropathy of the upper and lower extremities, residuals of a stroke, and coronary artery disease. However, to the extent his ability to perform physical activities are limited by these conditions, and to the extent these limitations are described in limiting terminology by medical professionals, the Board does not find that this constitutes regulation of activities for rating purposes. That is, to the extent the Veteran and medical professionals may be arguing that the Veteran's activity level is impaired due to diabetes-related disorders, such as diabetic neuropathy or a heart condition, this, is not "regulation of activities" as contemplated by the criteria under DC 7913; it is not related to blood sugar control, but is instead an allegation of physical capacity based on the myriad of disabilities now service-connected as associated with the DM. The Board does not deny that the Veteran has needed to avoid strenuous activities. However, the evidence does not support a finding that he has needed to regulate activities to treat his DM. Thus, an increased 40 percent rating for DM under DC 7913 is not warranted. Additionally, no separate evaluation is warranted for associated erectile dysfunction as the evidence demonstrates that there is no deformity. See 38 C.F.R. § 4.115(b), Diagnostic Code 7522 (2017). II.B. Coronary Artery Disease The Veteran's coronary artery disease has been evaluated as 60 percent disabling since the date the Veteran submitted his initial claim of entitlement to service connection in April 2004. The 60 percent rating is assigned pursuant to DC 7005. Under DC 7005, a 60 percent rating contemplates 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, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. The maximum 100 percent rating contemplates 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. 38 C.F.R. § 4.104, DC 7005. 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. As noted above, the Veteran submitted a claim of entitlement to service connection for CAD in April 2004. Of record is a January 2004 private consultation for CAD. The Veteran reported that he had experienced sharp chest discomfort for the previous two years. The discomfort would usually last for approximately one to two days and was associated with shortness of breath, or at least some difficulty in catching his breath. The discomfort would occur once every three months. The Veteran had undergone an exercise treadmill test that was positive for ischemia at peak exercise. The Veteran received a diagnosis of CAD, among other conditions. Post-testing left ventricular ejection fraction was noted to be 53 percent. Private treatment records show that the Veteran underwent a coronary angiogram and angioplasty with stenting in May 2004. A subsequent July 2004 stress echocardiogram report was conducted, showing left ventricular hypertrophy. The Veteran exercised for 9 minutes on a Bruce protocol, achieving 10.1 METs. The interpreting professional annotated that the inferolateral wall was hypokinetic with a calculated ejection fraction of 61 percent. Private treatment records from September 2004 show the Veteran undergoing evaluation for his CAD. The Veteran continued with some shortness of breath with exertion. This symptom would occur when the Veteran was working or working at home. He would also experience chest pain on exertion. Exercise testing showed METs levels listed as 3.44 and 3.14. An October 2004 X-ray study conducted at a private provider showed cardiomyopathy but no apparent acute cardiopulmonary process. The Veteran also underwent a coronary angiogram in October 2004 with the private provider, revealing a stent in the circumflex, a 50 to 60 percent lesion present in the left anterior descending, and no significant disease in the right coronary. VA provided an examination in March 2005. Then, the examiner noted that there had been no significant changes since the Veteran was previously examined by VA in August 2004 for diabetes. The Veteran had tried resuming work in July 2004 but only worked for a few weeks because he was experiencing chest pain with exertion one to two flights of stairs or scaffolding or following heavy lifting over 50 pounds of weight. A physical examination revealed regular rate and rhythm. The examiner found no murmur or gallop. The examiner diagnosed CAD status post angioplasty and stent placement. The ejection fraction was 61 percent and the METs level was provided as 10.1. Private treatment records from May 2005 show that the Veteran had undergone a PET scan which showed a medium size reversible apical, anterior, and anterolateral defect consistent with abnormal flow reserve. Left ventricular ejection fraction was 54 percent. The Veteran presented for another VA examination in December 2005. Then, the examiner referred to May 2005 private treatment records from the May Clinic showing a cardiology workup. The PET scan conducted then had shown a medium-size reversible apical, anterior and anterolateral defect consistent with normal flow reserve. Left ventricular ejection fraction at rest was 54 percent. The Veteran informed the examiner that he could walk at a controlled and slow pace for two to three miles. The Veteran's spouse indicated that he would have dyspnea on exertion with severe sweating with snow shoveling an area the size of a car. The Veteran reported that he would take nitroglycerin occasionally. The examiner indicated that the Veteran had dyspnea, fatigue, and angina on a weekly basis, sometimes daily depending on the Veteran's activity. The examiner estimated the Veteran's METs to be three to four. The Veteran was on numerous medications at that time. Private treatment records from March 2006 show the Veteran seeking treatment for complaints of dyspnea on exertion. The Veteran reported a history of having four stents placed on two blood vessels approximately 18 months earlier. The attending physician recommended reevaluation with a stress Cardiolite. This test was conducted the following week, still in March 2006. An addendum to the record showed that an Exercise Tolerance Test that demonstrated moderate inferolateral reversible ischemia. The plan was provided to admit the Veteran for cardiac catheterization. The report for this test listed a gated ejection fraction of 54 percent. VA treatment records show a stress test being conducted in August 2007. At that time, the test revealed a maximum workload of 10.1 METs. The Veteran underwent an echocardiogram with VA in June 2010. The study showed evidence for occlusion of the right internal carotid artery. A string sign could not be ruled out on the basis of that study. The interpreting staff also noted evidence for a 50 to 70 percent stenosis of the left internal carotid artery. Private treatment records show that the Veteran suffered a stroke in August 2009. Shortly thereafter, the Veteran underwent a transesophageal echocardiography. The test showed normal left ventricular wall motion and systolic function. Ejection fraction was estimated to be in the range of 60 to 65 percent. There was no significant valvular abnormality, clots, masses, or vegetations seen. VA treatment records document a stress test in November 2010. At that time, the test revealed a maximum workload of 7.5 METs. The Veteran underwent another echocardiogram with VA in May 2011. The study showed evidence of occlusion of the right internal carotid artery. There was plaque formation and a 0 to 50 percent stenosis in the left internal carotid artery, likely in the higher end of that range. Vertebral artery flow was antegrade bilaterally. Overall, there was no significant change in these values when they were compared to an echocardiogram performed in June 2010. At the July 2011 Board hearing, the Veteran testified that he had to stop working because of his CAD. He also described experiencing shortness of breath and a racing heart when performing activities such as walking. VA provided an examination in May 2012. The examiner indicated that the Veteran took Niacin, Aspirin, Metoprolol, Simvastatin, Potassium, and Fish Oil to treat CAD. The examiner found no evidence of congestive heart failure. An echocardiogram had been conducted in April 2012, showing normal results and an ejection fraction of 50 to 55 percent. The examiner also reviewed an August 2011 X-ray of the chest that was normal. The examiner conducted an interview-based METs test, concluding that the Veteran would have dyspnea, dizziness, fatigue, and angina at greater than 3 to 5 METs. VA provided another examination in May 2013. The findings are essentially similar to the findings provided in the May 2012 VA examination. The Veteran did not have congestive heart failure. Further, the METs level of greater than 3 to 5 was found to result in dyspnea, fatigue, and angina on an interview-based METs test. These findings were again noted in a May 2014 VA examination, which was memorialized in a July 2014 examination report. Private treatment records show that the Veteran suffered an accidental fall in May 2014. He subsequently underwent an echocardiogram. This test showed a normal sinus rhythm. There was no pericardial effusion, and the left ventricle size and wall thickness appeared normal. There appeared to be a completely normal ejection fraction and wall motion. The ejection fraction was estimated at 60 percent. The interpreting staff noted that this was normal. The ventricle shape was normal, as was the wall thickness. VA provided another examination in May 2017. The Veteran reported having chest pain from February through April 2017. Worsening shortness of breath was also present. The Veteran had undergone a stress test and echocardiogram in April 2017 and during the previous week, respectively. The echocardiogram showed a left ventricular ejection fraction of 60 to 65 percent. The examiner conducted an interview-based METs test and found that a workload of greater than 3 to 5 METs would result in dyspnea, fatigue, and angina. The examiner indicated that the Veteran did not have congestive heart failure. The Board has reviewed the voluminous VA treatment records pertaining to treatment for the Veteran's CAD. However, they offer no more insight into his disorder than those sources of evidence discussed above. The Board finds that an evaluation in excess of 60 percent is not warranted. The VA examiners are unanimous in determining there was no congestive heart failure. Throughout the appeal, left ventricular ejection fraction has been found to be in excess of 30 percent. Although the majority of the medical records found METs were greater than 3, the December 2005 VA examination report noted METs to be 3 to 4. But each of the other findings indicates METs in excess of 3; accordingly, the Board finds that his finding was an outlier, particularly since all of these are estimates, and does not accurately reflect the severity of the Veteran's disability. These findings thus do not more closely approximately a workload of 3 METs or less or an ejection fraction of less than 30 percent. Accordingly, an increased evaluation is not warranted. See 38 C.F.R. § 4.104, DC 7005. ORDER An initial disability rating in excess of 20 percent for diabetes mellitus, type II, is denied. An initial disability rating in excess of 60 percent for coronary artery disease is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs