Citation Nr: 21064243 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-17 493 DATE: October 19, 2021 ORDER Entitlement to a rating in excess of 60 percent for service-connected coronary artery disease (CAD) is denied. REMANDED Entitlement to a rating in excess of 30 percent for radiation proctitis is remanded. Entitlement to a rating in excess of 10 percent for residuals of prostate cancer. Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for peripheral neuropathy, right upper extremity, is remanded. Entitlement to service connection for peripheral neuropathy, left upper extremity, is remanded. Entitlement to service connection for peripheral neuropathy, right lower extremity, is remanded. Entitlement to service connection for peripheral neuropathy, left lower extremity, is remanded. FINDING OF FACT The preponderance of the evidence demonstrates that the Veteran's service-connected CAD was not manifested by chronic congestive heart failure; a workload of 3 metabolic equivalent (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for service-connected CAD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1968 and February 1991 to September 1991, to include service in the Republic of Vietnam with subsequent Reserve service. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A 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). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). 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). The Veteran's service-connected CAD is currently assigned a 60 percent disability rating under Diagnostic Code 7005. Pursuant to Diagnostic Code 7005, a 100 percent rating is assigned for chronic congestive heart failure; when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2020). One MET (metabolic equivalent) 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, fatigue, angina, 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). Pertinent evidence of record includes the Veteran's VA treatment records, private treatment records, VA examinations conducted in March 2013 and February 2021, and a December 2014 VA Form 21-0960A-1, Ischemic Heart Disease (IHD) Disability Benefits Questionnaire (DBQ). A March 2013 VA examination report noted the Veteran's diagnosis of CAD. The examiner noted that he did not suffer from congestive heart failure. With regard to METs testing, the examiner noted that exercise stress testing was not required as a part of the Veteran's current treatment plan. Thus, the examiner conducted an interview-based METs testing. The lowest level of activity at which the Veteran experienced symptoms, including dyspnea and fatigue, was estimated to be greater than 7 to 10 METs, which was consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The examiner noted that his LVEF was unknown. Furthermore, the examiner indicated that the Veteran's service-connected CAD did not impact his ability to perform sedentary or physical employment. An October 2013 VA treatment record noted that the Veteran did not exercise regularly; however, he was counseled on the benefits of regular exercise. A March 2014 private treatment record noted that the Veteran's LVEF was between 45% and 50%. An August 2014 VA echocardiogram revealed an estimated LVEF of 50% to 54%. In December 2014, the Veteran submitted a DBQ completed by his treatment provider who noted that his diagnoses included arterial disease, leg edema, and angina. The treatment provider noted that the Veteran did not suffer from congestive heart failure. With regard to METs testing, the treatment provider indicated that exercise testing had been conducted in December 2013; however, the treatment provider did not provide the level of METs demonstrated during the exercise testing. Instead, the treatment provider conducted an interview-based METs testing and concluded that the lowest level of activity at which the Veteran experienced symptoms, including dyspnea, fatigue, angina, and dizziness, was estimated to be 1 to 3 METs, which was consistent with activities such as eating, dressing, taking a shower, and slow walking. The examiner noted that his LVEF was 56%. Furthermore, the examiner noted the Veteran report that he was unable to walk more than 50 feet without chest pain and light headedness. A December 2014 VA treatment record noted that the Veteran was exercising regularly by walking, and he was counseled on the benefits of regular exercise. A December 2015 VA medical opinion noted that the Veteran's CAD caused only minimal obstructive disease as demonstrated by a March 2014 cardiac catheterization. The opinion provider continued that, although aortic stenosis appeared to be a concern, such was not CAD. The opinion provider continued that, while the Veteran's CAD would likely limit very exertional or strenuous employment or activities, it would unlikely affect routine, sedentary, and/or non-exertional activities such as minimal to mild ambulation and standing. The Veteran underwent another VA examination in February 2021, and the examiner again noted his diagnosis of CAD. The Veteran reported chest pain and pressure. The examiner noted that the Veteran did not suffer from congestive heart failure, and that he had not experienced a myocardial infarction. With regard to METs testing, the examiner conducted an interview-based METs testing, and the lowest level of activity at which the Veteran experienced symptoms, including dyspnea, fatigue, dizziness, and chest pressure was estimated to be greater than 7 to 10 METs, which was consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The examiner then noted that, with regard to the December 2014 DBQ's estimation of 1 to 3 METs, the examiner noted that such was not consistent with the Veteran's normal LVEF of 56%. Based on the foregoing, the Board concludes that the preponderance of the evidence fails to demonstrate that the Veteran's CAD more nearly approximated the criteria for a 100 percent disability rating under Diagnostic Code 7005. Significantly, there is no indication that his service-connected CAD was manifested by chronic congestive heart failure or a LVEF of less than 30 percent. As noted above, the March 2013 VA examination report, December 2014 DBQ, and the February 2021 VA examination report each indicated that the Veteran did not suffer from congestive heart failure. Furthermore, the Veteran's LVEF was consistently shown to be greater than 30 percent, as demonstrated by the March 2014 private treatment record, August 2014 VA treatment record, and the December 2014 DBQ. The Board notes that there are conflicting opinions as to the Veteran's estimated METs level. Significantly, while the December 2014 DBQ an interview-based METs testing and concluded that the lowest level of activity at which the Veteran experienced symptoms was 1 to 3 METs, the Board finds that this conclusion is inconsistent with other evidence of record and, therefore, is entitled to less probative weight. For example, while the treatment provider indicated that the Veteran's METs level was 1 to 3, which was consistent with activities such as eating, dressing, taking a shower, and slow walking, that same month, the Veteran told his VA treatment provider that he was exercising regularly by walking. Furthermore, the December 2015 VA medical opinion provider concluded that the Veteran's CAD would likely limit very exertional or strenuous employment or activities, but that it would unlikely affect routine, sedentary, and/or non-exertional activities such as minimal to mild ambulation and standing. Finally, the February 2021 VA examiner explained that the December 2014 DBQ's estimation of 1 to 3 was not consistent with the Veteran's normal LVEF of 56%. As such, the Board finds that the most probative evidence weighs against a finding that the Veteran's service-connected CAD is manifested by a workload of 3 METs or less causing dyspnea, fatigue, angina, dizziness, or syncope. In assessing the severity of the Veteran's CAD, the Board has considered his assertions regarding his symptoms, including chest pain, angina, dizziness, and trouble breath, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, however, the competent medical evidence offered detailed, specialized determinations pertinent to the rating criteria that is more probative in evaluating the pertinent symptoms associated with his CAD. Specifically, as noted above, at no point has the Veteran been assessed with chronic congestive heart failure and/or a LVEF of less than 30 percent, and the preponderance of the evidence demonstrates that his service-connected CAD is not manifested by a workload of 3 METs or less causing dyspnea, fatigue, angina, dizziness, or syncope. As such, his lay assertions do not support the assignment of a 100 percent disability at any point. In sum, the Board finds that the preponderance of the evidence is against the Veteran's claim for rating in excess of 60 percent for his service-connected CAD. Because the preponderance of the evidence is against his claim for a higher rating, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND With regard to the Veteran's claims for increased ratings for his service-connected radiation proctitis and residuals of prostate cancer, as well as his claim for service connection for a gastrointestinal disorder, the Board notes that there appears to be outstanding private treatment records that may be pertinent to his claims. Specifically, a January 2021 VA treatment record noted that the Veteran was now seeing a non-VA genitourinary specialist. The same treatment record also noted that the Veteran was now seeing a non-VA gastroenterologist. These records are not associated with the claims file. As any outstanding private treatment records may be pertinent to his appeal, the Veteran should be provided an opportunity to submit or identify any additional treatment records that are relevant to his claims on appeal, and to provide the necessary information in order for the VA to assist him in obtaining these potentially relevant records. 38 C.F.R. § 3.159(c). On remand, the AOJ should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through February 24, 2021, are currently of record. With regard to the Veteran's claims for service connection for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities, the Board remanded the Veteran's claims in December 2020 so that he could be afforded a VA examination that addressed whether he had current disabilities of the bilateral upper extremities and bilateral lower extremities. For any disability identified, the examiner was directed to address whether such had its onset within one year following his exposure to herbicide agents; whether such were directly related to his military service, to include his presumed exposure to herbicide agents; and/or whether such was secondary to his service-connected disabilities, to include the medications taken for such. Although the Veteran underwent an examination in February 2021, as will be explained, the Board finds that the examination report and opinion is insufficient to adjudicate the Veteran's claims for service connection for a number of reasons. Initially, the only disability diagnosed by the examiner was C6-7 cervical radiculopathy of the bilateral upper extremities. The examiner later indicated that the Veteran had evidence of bilateral hip arthritis and lower back from his spine arthritis from his lumbar facet joints. However, the examiner failed to address the clinical significance of an August 2020 VA Podiatry Note wherein the Veteran was diagnosed with peripheral neuropathy without loss of protective sensation. Furthermore, with regard to the diagnosed C6-7 cervical radiculopathy of the bilateral upper extremities, while the examiner addressed whether such had its onset within one year following his exposure to herbicide agents; as well as whether such was secondary to his service-connected disabilities, to include the medications taken for such, the examiner did not address whether such was directly related to his military service, to include his presumed exposure to herbicide agents. As such, to ensure substantial compliance with the December 2020, and to ensure a complete record upon which to decide his claim, the Veteran should once again be afforded a new VA examination to determine whether he experiences current disabilities of the bilateral upper extremities and bilateral lower extremities that are related to his military service and/or secondary to his service-connected disabilities, to include the medication taken for such. The matters are REMANDED for the following action: 1. Associate with the claims file any VA treatment records dated from February 24, 2021, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file, to specifically include the non-VA genitourinary specialist and gastroenterologist referenced in the January 2021 VA treatment record. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. Schedule the Veteran for an examination to determine the etiology of his bilateral upper and lower extremity pain. The examiner should review the claims folder. The examiner should address the following: a. Identify all bilateral upper and lower extremity disorders. If no diagnosis is rendered and only pain is identified, the examiner must indicate whether the Veteran's reported pain causes any functional impairment. If the examiner determines that the Veteran does not have peripheral neuropathy of the legs, he or she must address the Veteran's use of Gabapentin to treat his neuropathic leg pain, as well as the August 2020 VA Podiatry Note wherein the Veteran was diagnosed with peripheral neuropathy without loss of protective sensation. b. The examiner should opine whether the Veteran has early onset peripheral neuropathy, and if so, did it manifest within one year after the date of last exposure to herbicide agents. See June 1980 neurological consultation. c. For each disability, please opine as to whether it is at least as likely as not (approximately 50 percent probability) that such disability/impairment was incurred in, or is otherwise related to the Veteran's active service, to include presumed exposure to herbicide agents therein? d. For each disability, please opine as to whether it is it at least as likely as not (approximately 50 percent probability) that the Veteran's current neurologic disability is proximately due to a service-connected disability or medications used to treat a service-connected disability? e. Is it at least as likely as not (50 percent or greater probability) that the Veteran's current neurologic disability was aggravated (worsened) by a service-connected disability or medications used to treat a service-connected disability? A complete rationale shall be given for all opinions and conclusions expressed. 4. Thereafter, readjudicate the issues on appeal. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.