Citation Nr: 19169727 Decision Date: 09/09/19 Archive Date: 09/09/19 DOCKET NO. 18-34 849 DATE: September 9, 2019 ORDER Entitlement to service connection for a right knee condition status post a total right knee replacement is denied. Entitlement to an initial compensable rating for hypertensive vascular disease (hypertension and isolated systolic hypertension) is denied. Entitlement to an initial rating in excess of 30 percent for arteriosclerotic heart disease (coronary artery disease, or CAD) is denied. Entitlement to service connection for diabetes mellitus is stayed. Entitlement to service connection for right foot neuropathy is stayed. Entitlement to service connection for right foot neuropathy is stayed. Entitlement to service connection for a left leg amputation below the knee is stayed. Entitlement to service connection for aortic valve condition status post an aortic valve replacement is stayed. Entitlement to a total disability rating based on unemployability (TDIU) is stayed. STAY OF ADJUDICATION On July 1, 2019, the Secretary of Veterans Affairs directed the Board of Veterans’ Appeals (Board) to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act creates new statutory requirements for the adjudications of certain claims based on veterans’ herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971, and in Thailand during the period from January 9, 1962, to May 7, 1975. The issues listed as stayed in the Order section may be affected by the Act. Once the stay is lifted, adjudication of any stayed cases will be resumed in accordance with the Board’s docket order. FINDINGS OF FACT 1. The most probative evidence of record demonstrates that the Veteran’s current right knee disability did not have onset during service, within one year of separation from service, and is not otherwise related to service. 2. It is not reasonably shown that the Veteran has a history of diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more and requires continuous medication. 3. It is not reasonably shown that the Veteran has a left ventricular dysfunction with an ejection fraction of 30 to 50 percent; or, more than one episode of acute congestive heart failure in the past year; or, a workload of greater than three METs but not greater than five METs that result in dyspnea, fatigue, angina, dizziness, or syncope. CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.31, 4.104, Diagnostic Code (DC) 7101. 3. The criteria for an initial rating in excess of 30 percent evaluation for CAD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.31, 4.104, DC 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to December 1971 and August 1972 to August 1979, with additional service in the Naval Reserve. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2017, September 2017, and November 2017 rating decisions of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that the Veteran’s attorney has requested a status update regarding the issue of service connection for diabetes mellitus on several occasions, including as recently as August 2019. He states a Notice of Disagreement (NOD) was submitted in August 2018, in response to an August 2017 rating decision, and that the Veteran has yet to receive a Statement of the Case (SOC) for this issue. A review of the record shows, however, that subsequent to the August 2017 rating decision that denied service connection for diabetes mellitus, the Veteran submitted a request for reconsideration that same month. That was addressed in a November 2017 rating decision, to which the Veteran filed a NOD in April 2018. In response, the Veteran was provided a SOC in May 2018 and the Veteran’s attorney submitted a VA Form 9, substantive appeal, in June 2018. The RO certified the Veteran’s appeal in July 2018, and he was notified of this in September 2018. He was also notified in January 2018 that his appeal had been formally docketed at the Board. During this time, the Veteran also initiated an appeal of the August 2017 and September 2017 rating decisions, to the extent that they denied service connection for right foot peripheral neuropathy, left leg amputation, a right knee condition, aortic valve replacement, and granted service connection for hypertension and coronary artery disease with initial ratings of 0 percent and 30 percent, respectively, by filing two NODs that were received in August 2018. The Veteran also attempted to file a NOD with the August 2017 denial of service connection for diabetes mellitus. In response to the August 2018 NODs, the Veteran was provided a January 2019 SOC. He was advised, however, that the issue of service connection for diabetes mellitus was not being addressed in the SOC because it was already under the jurisdiction of the Board. The Board notes that the copy of the January 2019 SOC that was sent to the Veteran’s attorney was returned as undeliverable. In a February 2019 facsimile, the Veteran’s attorney submitted a status request for the NODs filed in August 2018 and requested that a SOC be sent. The Veteran, through his attorney, then submitted a VA Form 9, substantive appeal, in March 2019. In April 2019, the RO noted that the January 2019 SOC needed to be re-sent to the Veteran’s attorney prior to certification to the Board. The RO then certified the Veteran’s appeal in May 2019, and he was notified several days later, also in May 2019, that his appeal had been formally docketed at the Board. Regarding the attorney’s copy of the January 2019 SOC that was returned undeliverable, the Board finds that prejudicial procedural due process error has not occurred, as he timely filed a VA Form 9 on the Veteran’s behalf in March 2019, thus indicating he was aware of the contents of that document. The VA Form 9 also served to perfect the Veteran’s appeals before the Board. See Archbold v. Brown, 9 Vet. App. 124, 132 (1996). Therefore, the Board has jurisdiction to hear the issues on appeal. The Board also notes that additional medical documents have been added to the claims file subsequent to the RO’s most recent review of the claims file. Under 38 C.F.R. § 19.37, if an SOC is prepared prior to receipt of additional evidence, an SSOC must be furnished, as provided in 38 C.F.R. § 19.31, unless the additional evidence is duplicative or not relevant to the issue on appeal. Here, it appears that although the records were marked as received after the most recent SOC in January 2019, they are duplicative of records associated with the file prior to January 2019 and were already considered by the AOJ in the January 2019 SOC. Accordingly, issuance of an SSOC was not necessary. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are three requirements to establish service connection: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1110, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although all the evidence must be reviewed, only the most salient evidence must be discussed. Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000). Persuasive or unpersuasive evidence must be identified, however, and reasons must be provided for rejecting favorable evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Both medical and lay or non-medical evidence may be discounted in light of its inherent characteristics and relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). When there is an approximate balance of positive and negative evidence, the claimant must be afforded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a right knee condition, status post right knee replacement. The Veteran contends service connection is warranted for his right knee condition, status post right knee replacement. See March 2019 VA Form 9. However, he has not provided any specific contentions as to how he believes his right knee condition is related to his service. In the August 2018 NOD, the Veteran’s attorney contended the Veteran’s lay statements were sufficient to establish service connection, without corroborating medical evidence. He further contended that “VA should simply ask” the Veteran when his right knee condition began affecting him. Id. The Veteran’s service treatment records are silent for complaints of a right knee condition during his active duty service. On August 1979 service separation physical examination, the Veteran’s lower extremities were clinically evaluated as normal. On August 2017 VA examination, the VA examiner examined the Veteran and diagnosed right total knee replacement secondary to right knee degenerative arthritis. The VA examiner found that the Veteran’s current right knee disability was less likely than not incurred in or caused by active duty service, as there was no degenerative arthritis or chronic knee condition documented in active duty service. The VA examiner further opined that the right knee degenerative disease is likely due to the aging process and degeneration of a weight bearing joint, and not due to active service. The Veteran has not contended that his right knee condition began in service or that it has continued since service. During the Veteran’s August 2017 VA examination, the Veteran was asked to provide the onset and symptomatology of his right knee condition, which began in approximately 2008, according to the record. The Veteran was provided multiple opportunities to assert the onset and description of symptomatology of his right knee condition, including filings such as the initial claim, his Notice of Disagreement, VA Form 9, and any Statements in Support of a Claim. The Board finds that the February 2017 VA examination to be adequate, as the examiner thoroughly reviewed the Veteran’s medical history and determined the nature and etiology of the Veteran’s knee disability with supporting rationale. The surgical record support’s the VA examiner’s rationale regarding the etiology of the right knee disability. The Veteran has not submitted evidence of in-service disease or injury to his right knee nor chronic symptoms of right knee arthritis sustained within one year of separation from service, neither in the form of lay statements nor medical evidence. Consequently, the Board gives more probative weight to the competent medical evidence. Based on the foregoing, the Board finds that there is no evidence that the Veteran’s right knee degenerative arthritis was manifested in service or to a compensable degree in the first year following his separation from active duty service, or was otherwise related to his active duty service. Accordingly, the Board concludes that, while the Veteran has a diagnosis of a right knee condition status post total knee replacement due to right knee degenerative arthritis, the preponderance of the evidence is against his claim for entitlement to service connection on a direct or presumptive basis. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, the benefit of the doubt rule is inapplicable when there is a preponderance of the evidence against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to an initial compensable rating for hypertensive vascular disease (hypertension and isolated systolic hypertension). The Veteran contends that his hypertension is worse than the 0 percent rating currently assigned for that disability. See August 2018 NOD. The Veteran’s attorney further contends VA used the incorrect standard for rating the Veteran’s hypertension. Id. Hypertensive vascular disease (hypertension and isolated systolic hypertension) warrants a 60 percent rating when diastolic pressure is predominantly 130 or more. A 40 percent rating is warranted when diastolic pressure is predominantly 120 or more. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. A 10 percent rating is warranted when diastolic pressure is predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; as a minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication. 38 C.F.R. § 4.104, DC 7101. The Veteran’s history of blood pressure readings prior to the period on appeal fails to demonstrate diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more who requires continuous medication. From September 2016 through October 2016, the Veteran’s blood pressure was 168/74, 116/60, 130/80, 168/80, 132/80, 142/68, 146/80, 148/76, 138/64, and 124/66. In November 2016, the Veteran’s blood pressure was 122/62. In January 2017, the Veteran’s blood pressure was 144/64 and 140/80. From February 217 through May 2017, the Veteran’s blood pressure was 132/72, 122/68, 132/78, and 124/70. In June 2017 and July 2017, the Veteran’s blood pressure was 159/67, 130/68, 134/64, 140/80. In January 2018, the Veteran’s blood pressure was approximately 160/82 and 122/82 on the same day, according to a graph of the Veteran’s blood pressure. On August 2017 VA examination, the Veteran’s blood pressure was documented at 148/70, 143/72, and 147/72. The Veteran reported at this time that his hypertension was well controlled through medication. The VA examiner noted that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. On October 2018 VA examination, the VA examiner noted that no change had taken place since the August 2017 VA examination. The VA examiner also noted that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. The record does not demonstrate that the Veteran’s diastolic pressure has been predominantly 100 or more, or that his systolic pressure has been predominantly 160 or more. Although the Veteran continually requires medication, the record does not show a history of diastolic pressure predominantly 100 or more while taking medication. The Board acknowledges that the Veteran’s systolic pressure reached 160 or higher twice in September 2016 and once in January 2018; however, this does not establish that the Veteran’s systolic pressure has been predominantly above 160. The Board also acknowledges the Veteran’s contention that a compensable rating should be assigned because his hypertension is not gone and is, instead, controlled by medication. See August 2018 NOD. However, the rating criteria specifically contemplates situations when continuous medication is required to control hypertension. Furthermore, with regard to the contention that VA used the incorrect standard for reviewing the disability rating tables for this condition, as previously indicated, the Board finds that the Veteran’s service-connected hypertension is adequately contemplated by the schedular rating criteria. Accordingly, the criteria for a compensable rating for hypertension are not met under the rating schedule, and the Veteran’s claim for entitlement to an increased rating must be denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, the benefit of the doubt rule is inapplicable when there is a preponderance of the evidence against the claim. Ortiz, 274 F.3d at 1361. 2. Entitlement to an initial rating in excess of 30 percent for coronary artery disease (CAD). The Veteran contends that his CAD warrants a rating in excess of 30 percent. See August 2018 NOD. The Veteran’s CAD has been evaluated under Diagnostic Code (DC) 7005, which provides that a 30 percent rating contemplates a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram or X-ray. 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. A 100 percent rating contemplates documented coronary artery disease (DC 7005) or myocardial infarction (DC 7006) resulting in 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. On August 2017 VA examination, the VA examiner noted that the Veteran had a history of coronary artery disease with angioplasty and stent placement in July 2013. Myocardial perfusion results from that time indicated overall left ventricular systolic function was normal, without regional wall abnormalities and a left ventricular ejection fraction of 57 percent. The Veteran had no history of myocardial infarction, congestive heart failure, or cardia arrhythmia. The VA examiner noted that the Veteran’s July 2015 echocardiogram indicated a left ventricular ejection fraction of 65 percent, with normal wall motion and abnormal wall thickness or moderate concentric left ventricular hypertrophy. The VA examiner found that the Veteran’s interview-based METs test showed symptoms of dyspnea and fatigue at greater than 7 to 10 METs. On October 2018 VA examination, the VA examiner noted that the Veteran did not demonstrate evidence of cardiac hypertrophy or cardiac dilation. An echocardiogram from November 2017 was reviewed; it revealed a left ventricular ejection fraction of 61 percent with normal wall motion and normal wall thickness. The VA examiner found that the Veteran’s interview-based METs test showed symptoms of dyspnea at greater than 7 to 10 METs, and in a January 2019 addendum it was clarified that the METs level was due solely to the Veteran’s CAD. Having reviewed the complete record, the Board finds that the competent evidence does not support the criteria for a rating in excess of 30 percent for CAD. There has been no showing or report of congestive heart failure in the past year, workload of greater than 3 METs but not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness or syncope, or a left ventricular ejection fraction of 30 to 50 percent, to support the assignment of a rating in excess of 30 percent. In making this finding, the Board acknowledges the attorney’s contentions that the Veteran’s entire disability picture demonstrates that a higher rating for CAD is warranted. See August 2018 NOD. However, neither the Veteran nor his attorney has specifically contended how his disability picture is impacted by his service-connected CAD in a way that is not contemplated by the schedular rating criteria. The inherent purpose of the schedular rating criteria is to determine, as far as practicable, the severity of functional impact resulting from a service-connected disability, including any resultant occupational and social impairment, and therefore contemplates the Veteran’s contention of his entire disability picture being impacted by his service-connected CAD. Accordingly, the criteria for an initial rating in excess of 30 percent for CAD must be denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, the benefit of the doubt rule is inapplicable when there is a preponderance of the evidence against the claim. Ortiz, 274 F.3d at 1361. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.