Citation Nr: 1815447 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 13-00 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 60 percent from May 1, 2011, and several staged ratings from August 21, 2006, for a heart condition. 2. Entitlement to an initial rating in excess of 20 percent for diabetes mellitus type II (diabetes). 3. Entitlement to a compensable rating for a scar associated with coronary artery disease bypass graft and myocardial infraction (scar). 4. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Veteran represented by: Julie L. Glover, Attorney ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1966 to October 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision (heart condition and scar) and a December 2011 rating decision (diabetes) by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. The Veteran's heart condition was not manifested by criteria that would afford him an increased rating for any of his staged ratings on appeal. 2. The Veteran's diabetes requires insulin, restricted diet but not regulation of activities. 3. The Veteran's scar is linear and is neither painful nor unstable. 4. The Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW 1. The criteria for a higher rating for the heart condition, beyond what has been assigned, are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005 (2017). 2. The criteria for a compensable rating for a scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.10, 4.21, 4.97, DC 7805 (2017). 3. The criteria for a disability rating in excess of 20 percent for diabetes have not been met. 38 U.S.C. §§ 1155 , 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.119, Diagnostic Code (DC) 7913 (2017). 4. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2017); Mittleider v. West, 11 Vet. App. 181, 182 (1998). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson, 12 Vet. App. 119 (1999). The veteran's entire history is to be considered when making a disability determination. 38 C.F.R. § 4.1 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017) (providing, in pertinent part, that reasonable doubt will be resolved in favor of the veteran). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran). Heart Condition Under DC 7005 a 100 percent disability 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. A 60 percent disability 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 30 percent rating is warranted for workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The Board has carefully reviewed the Veteran's lay statements and his medical records. The Board finds that for the period from August 21, 2006 to February 28, 2008, from May 23, 2008 to June 23, 2008, and from August 11, 2010 to November 2010, the Veteran did not meet the criteria for a rating in excess of 30 percent. The Veteran's medical records do not show the Veteran had 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 - 50 percent. The Board finds that for the period from February 28, 2008 to March 23, 2008, the Veteran did not meet the criteria for a rating in excess of 10 percent as the Veteran's records do not indicate a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness or syncope or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x ray. The Board finds that for the period from July 23, 2008 to July 8, 2008, from November 1, 2008 to August 11, 2010, from November 29, 2010 to January 27, 2011, and from May 1, 2011 to present, the Veteran did not meet the criteria for a rating in excess of 60 percent as the Veteran's records do not indicate he had 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. Therefore, the Board finds that a higher rating at any stage on appeal is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Diabetes The Veteran's diabetes mellitus is rated under 38 C.F.R. § 4.119, DC 7913. The Veteran contends his diabetes is more severe than his 20 percent rating warrants. Pursuant to DC 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet. Important for this case, a 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring 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 for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of 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. Within the criteria for a 100 percent rating, "Regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under DC 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. The Veteran's medical records show the Veteran's diabetes has been controlled by diet and that the Veteran has been taken insulin for many years. However, the evidence, including medical records and examinations, does not support a finding that the Veteran's activities were "regulated". The Veteran contended in an October 2012 statement he did have regulation of activities, saying the September 2011 examination showed strenuous activity caused the Veteran to suffer fatigue and dyspnea. However, the examiner made these statements in relation to the Veteran's heart condition, not in relation to his diabetes. While a January 2016 doctor's note showed the Veteran's life or activities had changed since having diabetes, the examiner did not report the Veteran's activities of daily life had been regulated. The remainder of the Veteran's medical records is free from mention that his activities are regulated within the definition of DC 7913. Therefore, a rating in excess of 20 percent for diabetes is denied. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). Scar The Veteran is in receipt of a noncompensable rating under 38 C.F.R. § 4.118, DC 7805 for his scar. He seeks a higher disability rating. DC 7805 provides that any scars (including linear scars) and other disabling effects of scars should be evaluated, even if not considered in a rating provided under DCs 7800-04, under an appropriate DC. 38 C.F.R. § 4.118. While the Board acknowledges the Veteran's contentions that his scar warrants a higher disability rating, the preponderance of the evidence of record does not indicate the Veteran's scar warrants a higher disability rating. The Veteran's scar is not large enough to warrant a higher rating. The Veteran's scar does not limit his motion or ability to work and it there was no redness, inflammation, edema, keloid formation, and was not adherent to underlying tissue. The September 2011 examiner noted the scar was neither elevated nor depressed with a normal texture and was not indurated or inflexible. (See September 2011 and February 2013 examinations.) The Board has considered whether any other applicable DC would grant the Veteran a higher disability rating, however, no other DC was found to be applicable. DC 7800 - 7804). In sum, the preponderance of the evidence is against the assignment of a compensable disability rating for the service-connected scar and the claim will be denied. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2017). The Veteran had a combined rating of 70 percent as of November 29, 2010 with his coronary artery disease rated as 60 percent and his diabetes rated as 20 percent disabling and therefore met the criteria for a TDIU as of November 29, 2010. The Veteran contends he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Veteran previously worked as a construction superintendent and has a high school level education with no special training. The September 2011 examiner noted the Veteran had been unable to physically perform his job duties due to his heart condition. In June 2016, the Veteran had an independent vocational assessment. The examiner opined the Veteran's service-connected disabilities prevented him from following and sustaining substantially gainful employment even at the sedentary level. The Board has reviewed the evidence and finds that the Veteran is unable to maintain gainful employment due to his service-connected disabilities and therefore, a TDIU is granted. ORDER An initial rating in excess of 60 percent from May 1, 2011 and several staged ratings from August 21, 2006, for a heart condition is denied. An initial rating in excess of 20 percent for diabetes mellitus type II (diabetes) is denied. A compensable rating for a scar associated with coronary artery disease bypass graft and myocardial infraction (scar) is denied. A TDIU is granted. John J. Crowley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs