Citation Nr: 21073399 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 20-08 507A DATE: December 8, 2021 ORDER A rating higher than 60 percent for coronary artery disease (CAD) is denied. A rating higher than 20 percent for diabetes mellitus, type II (DMII) is denied. A rating higher than 20 percent for right lower extremity (RLE) sciatic nerve peripheral neuropathy is denied. A rating higher than 20 percent for RLE femoral nerve peripheral neuropathy is denied. A rating higher than 20 percent for left lower extremity (LLE) sciatic nerve peripheral neuropathy is denied. A rating higher than 20 percent for LLE femoral nerve peripheral neuropathy is denied. An effective date prior to March 18, 2013, for the grant of service connection for CAD is denied. An effective date prior to November 18, 2014, for the grant of service connection for RLE sciatic nerve peripheral neuropathy is denied. An effective date prior to November 18, 2014, for the grant of service connection for RLE femoral nerve peripheral neuropathy is denied. An effective date prior to November 18, 2014, for the grant of service connection for LLE sciatic nerve peripheral neuropathy is denied. An effective date prior to November 18, 2014, for the grant of service connection for LLE femoral nerve peripheral neuropathy is denied. FINDINGS OF FACT 1. The Veteran's CAD has not resulted in a workload of 3.0 METs or less which resulted in heart failure symptoms. 2. The Veteran's DMII was not shown to require regulation of activities. 3. The Veteran's bilateral lower extremity sciatic nerve radiculopathy more closely approximates moderate incomplete paralysis. 4. The Veteran's bilateral lower extremity femoral nerve radiculopathy more closely approximates moderate incomplete paralysis. 5. Prior to the Veteran's March 18, 2013, claim, there was no pending formal claims, informal claims, or a written intent to file a claim for service connection for CAD. 6. The Veteran's claim for secondary service connection for bilateral lower extremity peripheral neuropathy was filed on November 18, 2014; there was no pending formal claims, informal claims, or a written intent to file a claim for service connection for bilateral lower extremity peripheral neuropathy prior to November 18, 2014. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 60 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.104, Diagnostic Code (DC) 7005. 2. The criteria for a rating higher than 20 percent for DMII are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.119, DC 7913. 3. The criteria for separate ratings higher than 20 percent for bilateral lower extremity peripheral neuropathy of the sciatic nerve are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8526. 4. The criteria for separate ratings higher than 20 percent for bilateral lower extremity peripheral neuropathy of the femoral nerve are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 5. The criteria for an effective date prior to March 18, 2013, for the grant of service connection for CAD are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date earlier than November 18, 2014, for the grant of service connection for bilateral lower extremity peripheral neuropathy of the sciatic nerve are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.816. 7. The criteria for an effective date earlier than November 18, 2014, for the grant of service connection for bilateral lower extremity peripheral neuropathy of the femoral nerve are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1955 to March 1977. He is the recipient of the Vietnam Campaign Medal and the Vietnam Service Medal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. CAD The Veteran's CAD is assigned a 60 percent rating as of March 18, 2013, pursuant to DC 7005. Under DC 7005, the only rating higher than 60 percent available is a 100 percent rating, which requires a workload of 3.0 METs or less which results in heart failure symptoms. Note (3) to DC 7005 defines heart failure symptoms as to include, but not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. At no time has the evidence of record shown that the Veteran has met the criteria for a 100 percent rating. His VA examinations in 2016 and 2021 reported that he did not have congestive heart failure, his estimated METs were between 5 7; his 2016 left ejection fraction was 53 percent and is 2021 left ejection fraction was 55 percent. His resulting symptoms were dyspnea and fatigue. The Veteran and his representative have not identified any evidence which indicates that the criteria for a 100 percent rating have been met. As such, a rating higher than 60 percent for CAD is denied. The Board has also considered the Veteran's lay statements. While the Veteran is competent to report his symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for a rating higher than 60 percent, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DMII The Veteran's DMII is assigned a 20 percent rating under DC 7913. Under DC 7913, all ratings higher than 20 percent require regulation of activities. Complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. Non-compensable complications are considered part of the diabetic process under DC 7913. See 38 C.F.R. § 4.119, DC 7913, Note (1). As the Veteran is separately service connected for his peripheral neuropathy, nephrology, and CAD, the symptoms related to those disabilities cannot be considered in evaluating the level of disability due to DMII. 38 C.F.R. § 4.14. The Veteran underwent VA examinations to determine the severity of his DMII in 2016 and 2021. Neither examination found that the Veteran had been advised to have regulation of his activities due to his DMII. There are no other medical records of evidence which indicate that such advice has been given to the Veteran in regard to his DMII. Neither the Veteran nor his representative have indicated that he has been advised to regulate his activities due to his DMII. As such, the criteria for a rating higher than 20 percent have not been met. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Lower Extremity Peripheral Neuropathy The Veteran is service connected for bilateral neuropathy of his sciatic and femoral nerves under DCs 8520 and 8526. Both DCs separate out complete and incomplete paralysis. At the outset, the Board finds that there is no evidence which indicates or determines that the Veteran's sciatic or femoral nerve neuropathy resulted in complete paralysis. Thus, ratings for that criteria are inapplicable under either DC. For the Veteran's sciatic nerve neuropathy, DC 8520 mandates that incomplete paralysis which is found to be severe with marked muscular atrophy warrants a 60 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating. The Veteran's femoral neuropathy is rated under DC 8526 which provides that severe incomplete paralysis warrants a 30 percent rating. VA examinations of the Veteran's neuropathy have found that both his sciatic and femoral nerve neuropathy is moderate. See 2016 and 2021 VA examinations. While the Veteran's other medical records on file indicate that experienced occasional cramping, numbness, and tingling in his legs, see January 2019 private medical record, there are no records which provide any basis to establish the Veteran's sciatic or femoral nerve peripheral neuropathy was determined to be moderately severe or severe, or could be classified as such. The only direct evidence to specifically address the severity of the Veteran's sciatic and femoral nerve bilateral lower extremity neuropathy are the 2016 and 2021 VA examinations, which have found the neuropathy to be moderate. As such, the Board finds that the evidence does not support ratings higher than 20 percent for the Veteran's bilateral lower extremity peripheral sciatic or femoral nerve neuropathy. The Board has again considered the lay statements of evidence and has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Earlier Effective Date For a grant of service connection, the effective date is date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). Date of claim refers to the date the claim was received by VA. Where compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114(a). If a claim is received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is received more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of the claim. 38 C.F.R. § 3.114(a)(3). The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C. § 5110(b)(2). See 38 C.F.R. § 3.400(o)(2). The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). CAD The Veteran was granted service connection for CAD due to exposure to herbicides as of his March 18, 2013, claim. Prior to that date there is no evidence that the Veteran sought service connection for CAD. However, the law adding CAD to the list of diseases associated with exposure to certain herbicide agents became effective August 31, 2010. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). Thus, should the evidence establish that the Veteran had a diagnosis of CAD prior to his March 18, 2013, claim the Veteran is entitled to an effective date as of that diagnosis, but no earlier than 1 year prior to his claim or no earlier than March 18, 2012. Medical records received by VA indicated that the Veteran had been diagnosed with and was treating for CAD in April 2013. There are no other medical records of evidence which indicate that the Veteran's CAD diagnosis or treatment began prior to April 2013 and the Veteran and his representative have not identified or introduced any evidence which provide an earlier date of diagnosis or treatment. As such, there is no evidence of record which has been identified or introduced which supports an effective date prior to March 18, 2013, the date of the Veteran's claim. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Bilateral Peripheral Neuropathy of the Sciatic and Femoral Nerves The Veteran's bilateral lower extremity neuropathy of the sciatic and femoral nerves was granted service connection as of November 18, 2014, the date the Veteran filed his claim for service connection for these conditions. It is undisputed that the Veteran's bilateral lower extremity neuropathy is secondary to his service connected DMII. A 2021 VA examination found that the Veteran's bilateral lower extremity neuropathy was diagnosed as of October 17, 2014. The issue before the Board is whether the Veteran's bilateral lower extremity neuropathy claim constituted a separate claim for service connection on a secondary basis which would limit the effective date to the date upon which VA received his claim or was part of an increased rating claim which would allow the effective date back to date it became factually ascertainable i.e., October 2014. Initially, the Board notes that the laws concerning effective dates based on liberalizing legislation do not avail the Veteran in this case. As to the provisions of 38 C.F.R. § 3.816, the Veteran was not denied service connection for neuropathy of the left or right lower extremity between September 25, 1985, and May 3, 1989. Therefore, the provisions of 38 C.F.R. § 3.816(c)(1) are not applicable. As the Veteran did not file a claim for service connection for neuropathy of the left or right lower extremity, he also did not have a claim for a covered condition (or associated complications of a covered condition) pending on May 3, 1989, or between May 3, 1989, and the date of the applicable liberalizing law, which is May 2001 for diabetes. As such, the provisions of 38 C.F.R. § 3.816(c)(2) are not applicable. Therefore, 38 C.F.R. § 3.816(c)(3) is also not applicable. As 38 C.F.R. § 3.816 is not applicable, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). As explained, the exception under 38 C.F.R. § 3.400 does not apply to this Veteran because he did not file a claim for diabetic neuropathy within a year of his discharge from service. See 38 C.F.R. § 3.400(b)(2)(i). Further, the September 2016 rating decision granting service connection for the Veteran's bilateral lower extremity peripheral neuropathy did so specifically on a secondary basis to his service-connected DMII and not presumptively as the result of exposure to herbicide agents or in conjunction with an increased rating claim for DMII. Therefore, again, the liberalization legislation is inapplicable and does not afford the Veteran an earlier effective date for such disabilities. As such, the general rule, indicated above, applies. (Continued on the next page) In this matter, despite being sympathetic to the Veteran's claim, the Board cannot find that his claim for service connection for his bilateral lower extremity neuropathy was part of an increased rating claim for his DMII. The Veteran sought service connection for DMII in March 2013. He specifically sought service connection for bilateral lower extremity neuropathy as secondary to his DMII in November 2014. His claim for service connection for bilateral lower extremity neuropathy was not part of his claim for service connection for DMII and was specifically not a part of an increased rating claim for DMII, as the Veteran was not granted service connection for DMII until a September 2016 rating decision. The Board is bound by governing law and regulations and has no authority to award benefits not authorized by governing law. Again, the Board is sympathetic to the Veteran's argument that he is entitled to an effective date prior to November 2014 for peripheral neuropathy of the bilateral lower extremities as secondary to DMII, and the Board has fully considered this argument. Ultimately, the Board cannot escape the conclusion that the Veteran did not seek service connection for his bilateral lower extremity neuropathy as part of an increased rating claim but on a secondary basis independent from an increased rating claim for DMII. As such, the Board cannot grant an effective date earlier than when VA received the Veteran's claim for service connection on November 18, 2014. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.