Citation Nr: 21005888 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-38 829A DATE: February 2, 2021 ORDER Entitlement to an increased disability evaluation for coronary artery disease, currently rated as 30 percent disabling, is denied. Entitlement to service connection for right lower extremity peripheral vascular disease is granted. Entitlement to service connection for left lower extremity peripheral vascular disease is granted. Entitlement to service connection for osteoarthritis of the right shoulder is granted. Entitlement to service connection for osteoarthritis of the left shoulder is granted. Entitlement to service connection for peripheral neuropathy of the right upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the left upper extremity is granted. Entitlement to service connection for peripheral neuropathy of the right lower extremity is granted. Entitlement to service connection for peripheral neuropathy of the left lower extremity is granted. FINDINGS OF FACT 1. The Veteran’s coronary artery disease is manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea and fatigue; there is no chronic congestive heart failure and the Veteran has left ventricular dysfunction with an ejection fraction of 60 percent. 2. The Veteran served in Vietnam and is presumed to have been exposed to Agent Orange and other herbicides. 3. Peripheral vascular disease of the right lower extremity is attributable to the Veteran’s service-connected coronary artery disease. 4. Peripheral vascular disease of the left lower extremity is attributable to the Veteran’s service-connected coronary artery disease. 5. Osteoarthritis of the right shoulder is attributable to service. 6. Osteoarthritis of the left shoulder is attributable to service. 7. Peripheral neuropathy of the right upper extremity is related to service-connected disabilities. 8. Peripheral neuropathy of the left upper extremity is related to service-connected disabilities. 9. Peripheral neuropathy of the right lower extremity is related to service-connected disabilities. 10. Peripheral neuropathy of the left lower extremity is related to service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.100, 4.104, Diagnostic Code 7005 (2019). 2. The criteria for service connection for right lower extremity peripheral vascular disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 3. The criteria for service connection for left lower extremity peripheral vascular disease have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 4. The criteria for service connection for osteoarthritis of the right shoulder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 5. The criteria for service connection for osteoarthritis of the left shoulder have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 6. The criteria for service connection for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 7. The criteria for service connection for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 8. The criteria for service connection for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). 9. The criteria for service connection for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from June 1960 to June 1964, July 1964 to July 1970, and July 1970 to July 1980. This case came before the Board of Veterans’ Appeals (Board) on appeal of July 2012 and April 2015 rating decisions of Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In April 2018, a Travel Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In July 2018, December 2019, and August 2020, the Board remanded the Veteran’s case to the Agency of Original Jurisdiction (AOJ) for additional development and due process considerations. A supplemental statement of the case was most recently issued in November 2020. The case has since been returned to the Board for appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability evaluation for coronary artery disease, currently rated as 30 percent disabling, The Veteran’s coronary artery disease is rated as 30 percent disabling for the rating period on appeal pursuant to 38 C.F.R. § § 4.104, Diagnostic Code 7005. Diagnostic Code 7005 provide for a 30 percent evaluation for 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 dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted for 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 results in 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 chronic congestive heart failure, or when a workload of 3 METs or less results 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, Diagnostic Codes 7005, 7017. A note prior to the Diagnostic Code 7005 explains that one MET 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). The regulation that pertains to the evaluation of specified cardiovascular disorders, those rated under Codes 7000 through 7007, 7011, and 7015 through 7020, contains the following provisions: (1) in all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained. (2) even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis. (3) if left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran’s cardiovascular disability. See 38 C.F.R. § 4.100. After a review of all the evidence, the Board finds that the Veteran’s service-connected coronary artery disease more nearly approximates the criteria for the currently assigned 30 percent disability evaluation for the entire rating period on appeal. The Board finds that the Veteran’s symptoms have been relatively consistent, and that the currently assigned 30 percent evaluation takes into account the Veteran’s complaints of fatigue and shortness of breath, as well as the findings of a left ventricular ejection fraction of 55 percent upon echocardiogram, as per the July 2014 VA examination report. The December 2011 VA examination reflects interview-based METs estimate of >5 – 7. Nonetheless, the Veteran’s VA examination reports and treatment records reflect that there is no evidence of congestive heart failure, pericardial adhesions, heart valve disorders, or edema; there was also no evidence of cardiac hypertrophy or dilation. These findings are consistent with a 30 percent disability rating. As a result, the evidence of record reveals manifestations consistent with the currently assigned 30 percent disability rating for the Veteran’s coronary artery disease for the rating period on appeal. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after service 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). 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. For chronic diseases, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § § 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA laws and regulations provide that, if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who “served in the Republic of Vietnam” between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to herbicide agents. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin’s disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 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, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310. At the outset, the Board notes that the Board notes that the Veteran’s service personnel records reflect that the Veteran served in Vietnam. As such, the Veteran is presumed to have been exposed to herbicides, including Agent Orange, during active duty, and the presumptions outlined in 38 C.F.R. § 3.309(e) are applicable. 38 C.F.R. § 3.307(a)(6)(iv). Nevertheless, the Veteran does not claim, and the evidence does not reflect, that his claimed disabilities were incurred during combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 are not applicable. 2. And 3. Entitlement to service connection for right and left lower extremity peripheral vascular disease. In this case, there is evidence of a diagnosis of bilateral lower extremity peripheral vascular disease. VA and private treatment records, as well as VA examination reports, reflect that the Veteran was diagnosed with peripheral vascular disease in April 2001. Thus, the Veteran has a current disability. Further, a December 2004 treatment note by Dr. C indicated that the Veteran had peripheral vascular disease as a result of extensive atherosclerotic cardiovascular disease. A surgical report from Sutter Amador Hospital, dated October 2003, indicated that the Veteran had a long history of cardiovascular disease requiring a coronary artery stent and resulting in peripheral vascular disease of the right and left lower extremities. The Veteran is service-connected for coronary artery disease. Therefore, the evidence shows that the Veteran’s peripheral vascular disease of the right and left lower extremities are secondary to his service-connected heart condition. 38 C.F.R. § 3.310. Accordingly, the claims of service connection for peripheral vascular disease of the right and left lower extremities are granted. 4. and 5. Entitlement to service connection for a right and left shoulder disabilities. The Veteran contends that his currently diagnosed osteoarthritis of the right shoulder and osteoarthritis of the left shoulder are due to his active service; specifically, the Veteran contends that his shoulder disorders are secondary to his service-connected degenerative joint disease of the cervical spine. The Board finds that the evidence of record demonstrates service connection for osteoarthritis of the right shoulder and osteoarthritis of the left shoulder is warranted. Initially, the Board notes that the Veteran is currently service connected for degenerative joint disease of the cervical spine and has current diagnoses of arthritis of the bilateral shoulders. With regard to a nexus, the VA examiners have found that it was less likely than not that the Veteran’s osteoarthritis of the right shoulder and osteoarthritis of the left shoulder are related to his service. However, the Veteran has provided credible and competent reports of continued symptoms related to his osteoarthritis of the right shoulder and osteoarthritis of the left shoulder in the years since service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2008) (lay evidence may suffice to prove service connection on its own merits). In addition, the Board also observes that osteoarthritis is a systemic process, potentially involving multiple joints. Thus, it is reasonable to find that the same in-service injury to the Veteran’s degenerative joint disease of the cervical spine caused the Veteran’s osteoarthritis of the right shoulder and osteoarthritis of the left shoulder. The Board observes that the Veteran’s treatment records do not reflect a history of intercurrent disease or injury. Based on the foregoing, the Board finds that the evidence supports a finding that the Veteran’s osteoarthritis of the right shoulder and osteoarthritis of the left shoulder are related to his active service. Accordingly, service connection for these disabilities is warranted. 38 C.F.R. § 3.303. 1. 7. 8. and 9. Entitlement to service connection for peripheral neuropathy of the right and left upper extremities and the right and left lower extremities. The Board finds that the evidence of record demonstrates service connection for peripheral neuropathy of the right and left upper and lower extremities is warranted. The Veteran does not assert that his peripheral neuropathy of the right and left upper and lower extremities is related to service; he asserts that his peripheral neuropathy of the right and left upper and lower extremities is the result of his service-connected disabilities. The Board finds that the available medical evidence of record supports the Veteran’s contentions. Initially, the Board notes that the Veteran has been diagnosed with peripheral neuropathy of the bilateral upper and lower extremities and is service connected for coronary artery disease and, in this decision, peripheral vascular disease. As to a nexus, Dr. D, in a January 2018 statement, noted that the Veteran had presumed exposure to herbicides in service, and indicated that the medical literature indicated that herbicide exposure can cause peripheral neuropathy. Dr. D further noted that the Veteran has undergone multiple surgeries for treatment of his service-connected coronary artery disease and peripheral vascular disease, and that these disabilities had previously caused decreased circulation in the Veteran’s extremities, which can result in nerve damage; Dr. D noted that, despite improved circulation as a result of surgery, the Veteran’s neuropathy symptomatology had not improved. In this regard, the Veteran’s treatment records, related to treatment of his peripheral vascular disease and coronary artery disease confirm that the Veteran was treated concurrently for peripheral neuropathy of the right and left upper and lower extremities, indicating, as noted by Dr. D, that his peripheral neuropathy is related to the Veteran's service-connected peripheral vascular disease and coronary artery disease. To this point, the Board observes that the Veteran’s treatment records reflects peripheral neuropathy had its onset following the onset of his service-connected coronary artery disease and peripheral vascular disease. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole). Based on the evidence, the Board finds that the Veteran’s peripheral neuropathy of the right and left upper and lower extremities is related to his service-connected coronary artery disease and peripheral vascular disease. 38 C.F.R. § 3.310. Consequently, entitlement to service connection for peripheral neuropathy of the right and left upper and lower extremities is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.