Citation Nr: 21002004 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 11-34 126 DATE: January 12, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for service-connected diabetes mellitus, type II, is denied. Entitlement to a disability rating in excess of 60 percent for service-connected coronary artery disease (CAD) prior to August 1, 2016 is denied. Entitlement to a disability rating of 100 percent for service-connected CAD, from August 1, 2016 forward is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s service-connected diabetes mellitus, type II, has required daily insulin injections, a restricted diet, and regulation of physical activities, but has not caused episodes of ketoacidosis or hypoglycemic reactions requiring hospitalizations once or twice period year or twice-a-month visits to a diabetic care provider. 2. Prior to August 1, 2016, the Veteran’s service-connected CAD manifested in a stress test workload of between 3 and 5 METs resulting in dyspnea, fatigue, angina, dizziness, and/or syncope, as well as left ventricular dysfunction resulting in an ejection fraction of 30 to 50 percent. 3. From August 1, 2016, the Veteran’s service-connected CAD has manifested in chronic congestive heart failure. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 40 percent for service-connected diabetes mellitus, type II, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.119, Diagnostic Code 7913. 2. The criteria for entitlement to a disability rating in excess of 60 percent for service-connected CAD, prior to August 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.104, Diagnostic Code 7017. 3. The criteria for entitlement to a disability rating in excess of 60 percent for service-connected CAD, from August 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.104, Diagnostic Code 7017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1967 to August 1971. By way of background, these matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The claims were previously before the Board most recently in April 2019, at which time the Board remanded the claims to the agency of original jurisdiction (AOJ) in order to provide the Veteran with VA examinations to assess the current severity of his service-connected diabetes mellitus and coronary artery disease. A review of the record shows substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (2011). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss every piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, with regards to the Veteran’s claims. Increased Disability Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably discerned, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms satisfying the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In cases wherein reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Therefore, 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 required for that rating. 38 C.F.R. § 4.7. Similarly, where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to a disability rating in excess of 40 percent for service-connected diabetes mellitus, type II. Here, the Veteran was granted service connection for diabetes mellitus, type II, and assigned a disability evaluation of 40 percent in an August 2001 rating decision. In July 2008 correspondence with VA, the Veteran requested an increased rating for his service-connected diabetes mellitus. See Correspondence dated July 23, 2008. The Veteran asserts that the severity of his diabetes mellitus, type II, warrants a disability rating in excess of 40 percent. See, e.g., VA Form 9, dated December 22, 2011. Diabetes mellitus is rated under Diagnostic Code 7913 of 38 C.F.R. § 4.119. The Veteran’s diabetes mellitus is currently rated as 40 percent disabling, which, under Diagnostic Code 7913, is awarded where the disorder requires insulin, a restricted diet, and regulation of activities. A 60 percent rating is applicable when the disorder requires insulin, a 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 maximum 100 percent disability rating is warranted where the disorder requires more than one daily injection of insulin, a restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational 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. 38 C.F.R. § 4.119, Diagnostic Code 7913. Competent medical evidence is required to establish “regulation of activities,” namely, avoidance of strenuous occupational and recreational activities, for a disability rating of 40 percent or higher under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 364 (2007). Because of the successive nature of the rating criteria for diabetes, i.e., that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the three criteria listed in the 60 percent rating must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). Stated another way, if a component is not met at any one level, a veteran can only be rated at the level that did not require the missing component. Id. Furthermore, under Note 1 to 38 C.F.R. § 4.119, Diagnostic Code 7913, compensable complications of diabetes are rated separately unless they are part of the criteria used to support a 100 percent evaluation. In this regard, the RO has separately rated the Veteran’s complications of diabetes mellitus, including peripheral neuropathy of the right and left lower and upper extremities, as well as erectile dysfunction. The record reflects that the Veteran underwent a VA examination to assess the severity of his diabetes mellitus in December 2008. At that time, a clinician noted that the Veteran was prescribed Metformin and Rosiglitazone to treat the disorder. See VA examination dated December 15, 2008. The clinician also documented, in pertinent part, that the Veteran was on a non-caloric restricted diet, that the Veteran was seen approximately every three months for diabetic care, that the Veteran did not experience episodes of ketoacidosis or hypoglycemia, and finally, that the Veteran’s diabetes “does not affect any activity.” In July 2010, the Veteran was afforded another VA examination, wherein he reported that he took 95 units of insulin, Metformin, and Actos on a daily basis. See VA examination dated July 8, 2010. The examiner indicated that the Veteran was recommended to follow a restricted diet but did not regularly adhere to the suggested dietary guidelines and that the Veteran did not experience a significant restriction of activities due to his diabetes mellitus. Pursuant to the Board’s April 2016 remand of the issue of entitlement to an increased disability rating for his service-connected diabetes, the Veteran underwent a VA examination in May 2016. At that time, a VA physician noted that the Veteran’s diabetes mellitus, type II, was treated by medication that included daily injections of insulin, as well as a restricted diet and regulated physical activities. See VA examination dated May 20, 2016. Additionally, the physician reported that the Veteran visited his diabetic care provider less than 2 times per month for episodes of ketoacidosis or hypoglycemia and that the Veteran had no hospitalizations over the prior 12 months for such episodes. The Veteran was noted not to experience progressive unintentional weight loss or loss of strength attributable to his diabetes. Finally, the physician opined that the Veteran’s diabetes mellitus did not impact his ability to work. Consistent with the directives of the Board’s April 2019 remand, the AOJ scheduled the Veteran for an examination to document the severity of his diabetes mellitus. In October 2019, the Veteran was afforded another VA examination. At that time, an examiner documented that the Veteran’s diabetes mellitus, type II, was being managed by oral hypoglycemic agents, daily glucose monitoring and insulin injections, a restricted diet, and regulation of activities by continuous monitoring of glucose levels and carrying an insulin pump at all times. See VA examination dated October 23, 2019. Additionally, the Veteran was noted to visit his diabetic care provider less than twice per month for episodes of ketoacidosis and hypoglycemia; and the Veteran reported no hospitalizations in the prior 12 months due to episodes of either ketoacidosis or hypoglycemia. Finally, the Veteran relayed that he had not experienced unintentional weight loss or loss of strength due to his diabetes mellitus. Although the evidence indicates that, for the period on appeal, the Veteran’s diabetes has required daily insulin injections, a restricted diet, and regulation of physical activities, the medical evidence of record does not establish that the Veteran experiences episodes of ketoacidosis or hypoglycemic reactions that require hospitalizations once or twice period year or twice-a-month visits to a diabetic care provider. Because the criteria for a disability rating of 60 percent have not been met, a disability rating of 60 percent or higher is not warranted for the Veteran’s service-connected diabetes mellitus, type II. The Veteran has only been diagnosed with diabetes mellitus, type II, which is specifically covered by Diagnostic Code 7913. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 336–37 (2015) (“the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy”). Thus, consideration of any alternative Diagnostic Codes is not warranted in this case. Further, as noted above the Veteran is already in receipt of separate ratings for disabilities associated with his diabetes mellitus. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating for the Veteran’s diabetes mellitus, type II. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 2. Entitlement to a disability rating in excess of 60 percent for service-connected CAD, prior to August 1, 2016. The Veteran was awarded service connection for his CAD in a January 2002 rating decision, which assigned the disorder a disability rating of 10 percent. In August 2007 correspondence with VA, the Veteran requested an increased disability rating; and in a March 2008 rating decision, the Veteran was granted a disability evaluation of 60 percent for his CAD. The Veteran contends that the current severity of the disorder warrants a disability rating in excess of 60 percent. See, e.g., VA Form 9, dated December 22, 2011. The Veteran’s CAD is rated pursuant to Diagnostic Code 7017, for residuals of a coronary bypass surgery. Under Diagnostic Code 7017, in pertinent part, a 60 percent rating is warranted for residuals resulting in 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 causing dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for residuals manifesting 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. Notably, the same criteria and disability evaluations are associated with ratings for coronary artery disease under Diagnostic Code 7005. For rating diseases of the heart, one MET 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 conducted 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). Turning to the relevant medical evidence of record, a review of the record demonstrates that, during the period on appeal, the Veteran was first offered a VA examination in November 2008. At that time, a clinician reported that the Veteran’s disorder was being treated by prescription medication, without any side effects. See VA examination dated December 15, 2008. The Veteran denied angina but relayed that he experienced “dyspnea upon exertion only with fatigue[, but] without dizziness or syncope.” No congestive heart failure was documented; and no exercise stress test to determine the METs workload was conducted, nor was an estimate made as to the Veteran’s METs workload. Data from private medical records furnished by the Veteran indicate that, in January 2009, the Veteran’s stress test workload was determined to be 7 METs and his left ventricular ejection fraction was calculated at 46%. See private medical records dated January 12, 2009. The Veteran reported no angina, dizziness, or syncope but verbalized that he experienced dyspnea and fatigue. No congestive heart failure was noted upon examination. The Veteran was evaluated again by a VA clinician in September 2010, at which time the Veteran was unable to undergo exercise stress testing due to knee and hip pain. See VA examination dated September 9, 2010. However, the examiner estimated that the Veteran was “capable of 6 METs.” No episodes of congestive heart failure, either acute or chronic, were noted. The examiner documented that the Veteran had “no clear angina,” but noted that the Veteran reported fatigue and dyspnea upon exertion, though the examiner was uncertain whether these symptoms were caused by the Veteran’s CAD or by another disorder. Finally, the Veteran’s left ventricular fraction was documented as 46%, but 51% at rest. Following the Board’s April 2016 remand, the Veteran was afforded a VA examination in May 2016 to assess the severity of his CAD. At that time, an examiner conducted an interview-based METs test, which indicated a METs level greater than 3-5 METs, although the examiner could not determine the extent to which the Veteran’s CAD affected the METs level, as the Veteran also experiences other cardiac and vascular disorders. See VA examination dated May 20, 2016. The Veteran reported dyspnea upon physical exertion, but no fatigue, angina, dizziness, or syncope. The examiner observed that the results of an April 2016 echocardiogram revealed a left ventricular ejection fraction between 50% and 55%. The Veteran relayed that he had not experienced congestive heart failure. The functional impact of the disorder resulted in an inability to perform labor that “would require more than moderate physical exertion.” Based on the foregoing medical evidence, the Board finds that the record does not support entitlement to a disability rating in excess of 60 percent for the Veteran’s service-connected CAD, prior to August 1, 2016. Specifically, a 100 percent rating is not appropriate in this case because the medical evidence does not demonstrate that the Veteran experienced either (1) chronic congestive heart failure; (2) a workload of 3 METs or less, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or (3) left ventricular dysfunction with an ejection fraction of less than 30 percent. Further, there is no evidence that during this period the Veteran underwent an additional surgery, and therefore a temporary 100 percent rating as provided under Diagnostic Code 7017 for three months following hospital admission for surgery is also not warranted. The Veteran has only been diagnosed with coronary artery disease, status post bypass surgery, which is specifically covered by Diagnostic Code 7017. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland, 27 Vet. App. at 336–37. However, even if rating by analogy for this period were warranted, as noted above the rating criteria for Diagnostic Codes applicable to other heart disabilities are the same as the criteria contained in Diagnostic Code 7017. Therefore, an increased rating during the period at issue. under other Diagnostic Codes is not possible for the reasons stated above. In sum, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s heart disability more nearly approximated the level of severity contemplated by higher ratings under Diagnostic Code 7017 prior to August 1, 2016. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. 3. Entitlement to a disability rating in excess of 60 percent for service-connected CAD, from August 1, 2016 Private medical records from August 2016 indicate, in pertinent part, that the Veteran was seen for “acute-on-chronic systolic congestive heart failure.” See private medical treatment records dated August 1, 2016. In November 2016, the Veteran’s left ventricular ejection fraction was recorded as 40 to 45%. See private medical treatment records dated November 7, 2016. In private treatment records from August 2017, the Veteran’s left ventricular ejection fraction was noted to be 34% during an evaluation conducted in May 2017. See private medical treatment records dated August 11, 2017. Pursuant to the Board’s April 2019 remand, the Veteran was offered a new VA examination for his service-connected CAD. In October 2019, the results of an interview based METs test revealed a level of between 3 and 5 METs. See VA examination dated October 23, 2019. The Veteran relayed to the clinician that he experiences dyspnea and fatigue, but the record was silent for any mention of angina, dizziness, or syncope. The clinician documented that the Veteran has chronic congestive heart failure but had not experienced any episodes of acute chronic heart failure within the past year. The Veteran’s left ventricular ejection fraction was 34% at that time. Finally, the Veteran verbalized that his CAD caused functional impairment insofar as his low ejection fraction levels prohibit him from performing medium- and heavy-duty physical labor. In light of the foregoing, the Board finds that the competent medical evidence of record demonstrates that, as of August 1, 2016, the Veteran has experienced chronic congestion heart failure. Thus, a disability rating of 100 percent for service-connected CAD is warranted from August 1, 2016. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Tolbert, 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.