Citation Nr: 21065766 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-40 820 DATE: October 27, 2021 ORDER Entitlement to an initial disability rating greater than 30 percent for coronary artery disease prior to August 4, 2016 and greater than 60 percent thereafter is denied. REMANDED Entitlement to an initial rating greater than 20 percent for diabetes mellitus, type II, with hypertension and diabetic retinopathy is remanded. Entitlement to service connection for a skin disorder of the feet is remanded. Entitlement to service connection for peripheral neuropathy of the left upper extremity is remanded. Entitlement to service connection for peripheral neuropathy of the right upper extremity is remanded. FINDINGS OF FACT 1. Prior to August 4, 2016, the Veteran's coronary artery disease was not manifested by more than one episode of congestive heart failure in the prior year, a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs, nor a left ventricular ejection fraction of less than 50 percent. 2. From August 3, 2016, the Veteran's coronary artery disease was not manifested by a myocardial infarction, chronic congestive heart failure, a workload of 3 METs or less, nor a left ventricular ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. Prior to August 4, 2016, the criteria for an initial rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Codes 7006-7005. 2. From August 4, 2016, the criteria for a rating in excess of 60 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Codes 7006-7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1963 to September 1966. In April 2019, the Board remanded the Veteran's claims for entitlement to service connection for hypertension, entitlement to service connection for diabetic retinopathy, and entitlement to service connection for peripheral neuropathy of the right and left lower extremities for additional development. In a June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for peripheral neuropathy of the right and left lower extremities. Additionally, the AOJ granted service connection for hypertension and diabetic retinopathy, and ratings for those disabilities are now included within the rating for diabetes mellitus, type II. Because the AOJ has granted the full benefit sought on appeal with regard to the claims for entitlement to service connection for peripheral neuropathy of the right and left lower extremities, entitlement to service connection for hypertension, and entitlement to service connection for diabetic retinopathy, those issues are no longer before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating 1. Entitlement to an initial disability rating greater than 30 percent for coronary artery disease prior to August 4, 2016 and greater than 60 percent thereafter The Veteran's service-connected heart disability is rated as 30 percent disabling prior to August 4, 2016, and 60 percent thereafter under diagnostic code 7006-7005. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 7005 rates coronary artery disease and Diagnostic Code 7006 rates myocardial infarction with residuals. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease) and requires documented coronary artery disease. Arteriosclerotic heart disease resulting in a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray, is rated as 30 percent disabling. Arteriosclerotic heart disease resulting in 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated as 60 percent disabling. Arteriosclerotic heart disease 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, is rated as 100 percent disabling. 38 C.F.R. § 4.104. Diagnostic Code 7006 provides the same rating criteria as Diagnostic Code 7005, except that it recognizes a history of documented myocardial infarction and provides for a 100 percent disability rating during and for three months following a myocardial infarction, documented by laboratory tests. 38 C.F.R. § 4.104, Diagnostic Code 7006. Prior to August 4, 2016, the Veteran's service-connected coronary artery disease does not warrant a rating in excess of 30 percent. Private treatment records from 2012 through August 4, 2016 reflect ejection fractions of 55, 65, and 75 percent and a METs level of 7 or 10.1. In that regard, a November 2012 stress echocardiogram showed a METs level of 7 with ejection fraction of 55 percent and post-exercise ejection fraction of 65 percent. The private treatment records also show that the Veteran underwent stent placement and angioplasty in 2012 due to unstable angina. A November 2013 stress echocardiogram reflects a METs level of 10.1 with ejection fraction of 55 percent and post-exercise ejection fraction of 75 percent. At a November 2013 VA examination, the Veteran reported a history of percutaneous coronary intervention in 2001 and 2012, and myocardial infarction in 2001. He denied having undergone coronary bypass surgery, heart transplant, implanted cardiac pacemaker, and implanted cardioverter defibrillator. The examiner noted that the Veteran had congestive heart failure, but that it is not chronic and that the Veteran had not had more than one episode of acute congestive heart failure in the prior year. A diagnostic exercise test was conducted, which provided a METs level of 10.1. Left ventricular ejection fraction was reported as 55 percent. The examiner noted that the Veteran's ischemic heart disease did not impact his ability to work. The Board acknowledges that there were stent placements in 2001 and 2012, and that the Veteran underwent an angioplasty in 2012. However, the evidence does not show that the Veteran's coronary artery disease manifested in left ventricle dysfunction sufficient for a higher rating. The evidence of record prior to August 4, 2016 documents a METs level of no less than 7 and left ventricular ejection fraction of no less than 55 percent. As to the documented complaints of angina noted in the record, a 30 percent disability rating adequately compensates for such symptoms. Accordingly, an initial rating greater than 30 percent is not warranted for the Veteran's coronary artery disease under Diagnostic Code 7006-7005 prior to August 4, 2016. From August 4, 2016, the Veteran's coronary artery disease does not warrant a rating in excess of 60 percent. An August 2016 cardiac echo report reflects low normal left ventricle systolic function with ejection fraction of 50 to 55 percent. A June 2019 cardiac echo report shows left ventricle ejection fraction of 55 percent. There is no evidence of left ventricle ejection fraction of less than 30 percent. In a January 2020 VA examination, the Veteran reported a history of myocardial infarction in 2001. The examiner noted that there was no history of congestive heart failure, arrhythmia, heart valve conditions, infections heart conditions, or pericardial adhesions. There was a history of percutaneous coronary intervention in 2001 and 2012 due to coronary artery disease. Physical examination revealed a heart rate of 68 with irregular rhythm. Heart sounds were normal and there was no jugular-venous distension. Auscultation of the lungs was clear. Peripheral pulses were diminished and there was no peripheral edema in either lower extremity. The examiner reported that there was evidence of cardiac hypertrophy on echocardiogram but no evidence of cardiac dilation. Left ventricular ejection fraction was reported as 55 percent based upon a June 2019 echocardiogram. Interview-based METs testing was found to be between 3 and 5 METs with dyspnea and fatigue consistent with activities such as light yard work, mowing the lawn, and brisk walking. The examiner remarked that the Veteran would not likely tolerate any work activity requiring greater than 5 METs of cardiac demand. Based on the probative medical evidence of record, the Board finds that the Veteran's coronary artery disease does not warrant a rating in excess of 60 percent from August 4, 2016. There is no evidence of chronic congestive heart failure; 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. Accordingly, a rating higher than 60 percent under Diagnostic Code 7006-7005 is not warranted at any time during this period. The preponderance of the evidence is against the assignment of a rating in excess of 30 percent prior to August 4, 2016 and a rating in excess of 60 percent thereafter for the service-connected coronary artery disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an initial rating greater than 20 percent for diabetes mellitus, type II, with hypertension and diabetic retinopathy In the September 2021 informal hearing presentation, and in his June 2014 notice of disagreement, the Veteran noted that he believed that his diabetes mellitus was manifested by impaired kidney function. He noted that he had "previously submitted reports from [his] kidney [physician] Dr. [M]." Review of the claims file does not show any of the Veteran's treatment records from Dr. M, the Veteran's nephrologist. Accordingly, remand is required to obtain the identified treatment records. Also, as noted above, in a June 2020 rating decision, the AOJ awarded service connection for diabetic retinopathy and hypertension as noncompensable manifestations of the Veteran's diabetes mellitus, type II. Review of the record reflects that additional pertinent evidence was associated with the Veteran's claims file after the AOJ most recently considered the appropriate evaluation for diabetes with diabetic retinopathy and hypertension in a June 2020 Supplemental Statement of the Case (SSOC). Specifically, the Veteran underwent a VA eye examination in June 2020, seven days after the June 2020 SSOC was issued. As this medical evidence has not been considered by the AOJ in determining the appropriate disability rating for the Veteran's diabetes mellitus, type II with diabetic retinopathy, the AOJ must conduct an initial review of this evidence for the issue on appeal and issue an SSOC to ensure that the Veteran is afforded due process. See 38 C.F.R. §§ 19.31, 19.37(b), 20.1304(c). 2. Entitlement to service connection for a skin disorder of the feet In compliance with the Board's April 2019 Remand directives, the Veteran underwent a VA examination in January 2020 to determine the etiology of his skin disorder of the bilateral feet. Review of the examination report reflects that the January 2020 VA examiner did not find evidence of a skin disorder of the feet on examination. The examiner opined that the "condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness." However, the examiner then remarked that the "current physical exam findings of the feet are essentially due to or caused by the Diabetes Mellitus condition, which affects the health of the skin, toenails, nerves and blood vessels of the feet." The Board requests clarification of the January 2020 VA examiner's opinion, which appears to relate the Veteran's claimed skin disorder of the feet to his service-connected diabetes mellitus, but fails to identify the skin condition related to diabetes. On remand, the AOJ should request that the January 2020 VA examiner identify the diagnosis of the skin disorder of the feet which is related to the Veteran's diabetes mellitus, type II. 3. Entitlement to service connection for peripheral neuropathy of the left upper extremity and entitlement to service connection for peripheral neuropathy of the right upper extremity In a January 2020 VA examination report, the VA examiner noted that the Veteran did not have peripheral neuropathy of the right or left upper extremity. However, electromyography and nerve conduction studies were not conducted to rule out such a diagnosis. Review of the medical evidence of record shows that EMG and NCV testing conducted in November 2010 revealed findings of cervical radiculopathy with left ulnar neuropathy and mild peripheral neuropathy. Given such findings on objective testing, the Board cannot afford significant probative value to the January 2020 VA examiner's opinion in the absence of similar testing. Accordingly, the Veteran's claims for service connection for peripheral neuropathy of the right and left upper extremities are remanded to obtain a new VA examination which conducts the identified testing. The matters are REMANDED for the following action: 1. Send the Veteran a letter requesting that he submit or provide a completed authorization to allow VA to obtain all treatment records from non-VA providers pertinent to his claim, to specifically include those records from Dr. M., his nephrologist. All actions to obtain these records should be documented in the claims file. The AOJ must make two attempts to obtain private treatment records, or make a finding that further requests would be futile. If no records are obtained, the AOJ must provide the Veteran with a proper notice that includes (a) the identity of the specific records that cannot be obtained, (b) an explanation as to the efforts that were made to obtain those records, (c) a description of any further action to be taken by VA with respect to the claims, and (d) that the Veteran is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond 2. Obtain a supplemental opinion from the examiner who conducted the January 2020 VA skin examination of the feet and request that the examiner identify the diagnoses for the skin disorders of the feet that the examiner believed were related to the Veteran's service-connected diabetes mellitus, type II. If the examiner who provided the January 2020 VA examination is not available, schedule the Veteran for a new VA examination to assess the existence and etiology of his skin disorder of the feet. The examiner should provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent probability or greater) that any skin disorder of the feet currently diagnosed or diagnosed during the pendency of the claim were caused by or incurred during the Veteran's active duty service. If not, the examiner should also provide an opinion as to whether the Veteran's skin disorder of the feet was proximately due to or aggravated by his service-connected diabetes mellitus, type II. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a skin disorder was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran's lay statements and is advised that the Veteran is competent to report observable symptomatology. 3. Provide the Veteran with a VA examination by appropriate physician to determine the existence and etiology of his peripheral neuropathy of the right and left upper extremities. To the extent possible, the examiner should be different from the January 2020 examiner. The Veteran's claims file and a copy of this remand must be reviewed by the examiner, and the examiner must state that this evidence was reviewed in the examination report. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. The examiner is asked to specifically conduct electromyography (EMG) and/or nerve conduction studies or explain why such studies are not needed. Based upon a complete review of the evidence of record, to include the Veteran's lay statements, the VA examiner must opine as to whether it is at least as likely as not (i.e., a 50 percent probability or more) that the Veteran has peripheral neuropathy of the right and left upper extremities, and if so, whether the peripheral neuropathy was incurred in or caused by his active duty service, to include in-service exposure to Agent Orange. If a diagnosis of peripheral neuropathy is made, the examiner should also provide an opinion as to whether the Veteran's peripheral neuropathy of the right and left upper extremities was proximately due to or aggravated by his service-connected diabetes mellitus, type II. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that peripheral neuropathy was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale for all opinions must be provided. The examiner must consider and discuss the Veteran's lay statements and is advised that the Veteran is competent to report observable symptomatology. 4. Readjudicate the issues on appeal with consideration of all the evidence of record. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the issues to the Board, if otherwise in order. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.