Citation Nr: 21008813 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 12-08 565 DATE: February 18, 2021 ORDER Service connection for coronary artery disease is denied. Service connection for peripheral vascular disease of the lower extremities is denied. Service connection for hypertension is denied. Entitlement to a temporary total rating (TTR) based on July 2009 heart surgery is denied. Entitlement to a rating in excess of 10 percent for a left knee disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Heart disease was not incurred until years after service and is not etiologically related to service. 2. Peripheral vascular disease was not incurred until years after service, is not etiologically related to service, and is not secondary to a service-connected disability. 3. Hypertension was not incurred until years after service, is not etiologically related to service, and is not secondary to a service-connected disability. 4. The left knee disability does not result in limitation of flexion to fewer than 105 degrees, limitation of extension, or instability. 5. The service-connected disabilities have not rendered the Veteran unemployable. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. § 3.303, 3.3.07, 3.309. 2. The criteria for service connection for peripheral vascular disease have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. § 3.303, 3.3.07, 3.309, 3.310. 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137; 38 C.F.R. § 3.303, 3.3.07, 3.309, 3.310. 4. The criteria for a temporary total rating for heart surgery have not been met. 38 C.F.R. §§ 4.29, 4.30. 5. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5003. 6. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1987 to January 1994. In July 2016 the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In June 2017 and in September 2018 this appeal was remanded for further development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty or active duty for training or for disability resulting from injury incurred in or aggravated by inactive duty for training. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. Where a veteran served for at least 90 days during a period of war and manifests cardiovascular-renal disease to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). 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. 38 C.F.R. § 3.310(b). November 1993 separation examination records indicate that the Veteran had elevated cholesterol (noted as 273) and triglycerides. A February 2004 VA treatment record reveals the Veteran’s history of intermittent right lower extremity pain for six months. The Veteran reported that the pain was aggravated by walking. An April 2004 VA treatment record indicates that recent lab tests showed elevated lipids. The Veteran denied chest pain, shortness of breath, or dyspnea on exertion. The Veteran was diagnosed with hyperlipidemia. A November 2007 VA treatment record reveals the Veteran’s history of numbness in the left leg with increased activity and exertion for the previous two days. He also reported intermittent pain and cramping in the left buttock, thigh, and calf for more than a year, more intense the previous two days. He also stated that his leg falls asleep when he sleeps. He denied previous episodes of similar symptoms. The examiner believed it was most likely muscle strain and secondary cramping due to the Veteran’s rigorous physical activity and exertion the previous few months. The record also reveals diagnosis of hypertension and hyperlipidemia. A subsequent November 2007 VA treatment record reveals the Veteran’s history of cramping in the calves and hamstrings for a “couple of months” and leg weakness for one week. He denied injury or back pain. The assessment was left leg numbness/cramping, suspect radicular symptoms but need to rule out claudication. A February 2008 VA treatment record reveals the Veteran’s history of left leg claudication at 100 feet. After evaluation, the examiner suspected underlying aortoiliac occlusive which will likely require an aortobifemoral bypass. A November 2008 VA treatment record reveals the Veteran’s history of an acute onset of palpitations, sweating, and dizziness for a few minutes. He reported a similar episode a “long time ago.” The assessment was atypical chest pain palpitation episode, low suspicion for cardiac. An April 2009 VA treatment record reveals the Veteran’s history of pain in his calves when he walks more than 100 yards. He also reported that he went to the emergency room twice with chest pain that started at rest, with normal echocardiogram. The record reports diagnosis of leg pain with abnormal ankle brachial index (ABI) and nonpalpable pulse, nonspecific chest pain episodes without echocardiogram changes, smoking, and hyperlipidemia. Blood pressure was noted to be stable. A May 2009 VA treatment record reports that the Veteran had a positive chemical stress test. The Veteran reported more episodes of chest pain with some exertion since the previous visit in March. The Veteran was admitted to the emergency room. The admission record reports that the Veteran had a two-month history of recurrent sharp chest pain and an abnormal stress chest that revealed moderate reversible ischemia. The discharge report reveals diagnosis of coronary artery disease. July 2009 VA treatment record report that the Veteran had severe peripheral vascular disease (complete left common femoral and right external iliac artery occlusion) and coronary artery disease, for which he underwent coronary artery bypass graft times four. A February 2014 VA treatment record reports a diagnosis of hypertension. The record reports that it was unclear why such a young man without prior hypertension or diabetes mellitus with mild hyperlipidemia would have such severe atherosclerotic disease in his 30s to cause severe coronary artery disease and peripheral vascular disease. August 2015 VA medical opinions reveals the determinations that the Veteran’s peripheral vascular disease, coronary artery disease, and hypertension were less likely than not incurred in or caused by service. The opinion reports that the conditions were more likely the result of the Veteran’s smoking, noting that the Veteran smoked for many years and that the conditions were diagnosed 10 years or more after discharge from service. The physician’s assistant (PA) explained that tobacco use is the top risk factor for coronary artery disease, though the Veteran had multiple other risk factors. The PA added that the risk factors for developing hypertension includes tobacco use but does not list lipids or cholesterol. The PA reported that the Veteran was not diagnosed with coronary artery disease, peripheral vascular disease, or hypertension in service and that cholesterol was not the direct cause of the conditions. The PA stated that the conditions were not the result of high cholesterol diagnosed in service. The PA noted that everyone has cholesterol in the body because they are needed to function and that the type of cholesterol mixed with outside influence of weight, tobacco use, alcohol, activity level, and genetics is what causes disease. A July 2019 VA medical opinion reveals the determination that the hypertension was less likely than not incurred in or caused by service. The medical professional noted that elevated cholesterol levels, notably low-density lipoproteins (LDL), increase risk for hypertension and that the Veteran’s LDL level was not listed on the separation examination. The medical professional noted that although the Veteran reported treatment for cholesterol in 2000, the earliest documentation of elevated LDL in the record dated in August 2008, 14 years after service and that earlier records were negative for LDL trends or treatment. The medical professional found a nexus had not been established. In addendum opinions, the medical professional reported that elevated cholesterol (specifically LDL) and triglyceride and smoking are risk factors that increase the risk for heart disease and hypertension and that elevated cholesterol and triglyceride can be managed via diet and exercise and smoking cessation can decrease risk. The medical professional noted that the separation examination revealed a smoking history and non-quantified notation of elevated cholesterol and triglyceride. The medical professional reported inability to fully attribute a mere elevated cholesterol and triglyceride (non-quantified) to the Veteran’s development of his current heart disorder and hypertension. A July 2019 VA vascular examination reveals diagnosis of peripheral vascular disease. The Veteran reported that symptoms began in 2005. The examiner noted that the Veteran failed to report for an ankle brachial test so the examiner was unable to confirm the reported diagnosis of arteriosclerosis obliterans. The examiner reported that it was less likely than not that the claimed disorder was incurred in or related to service. The examiner explained that the Veteran had not reported for the test required to confirm a diagnosis of arteriosclerosis obliterans. Heart Disease Service treatment records reveal no finding or history of heart disease, service examination records reveal no diagnosis or history indicative of heart disease, and the initial diagnosis dates in 2009, though the record includes treatment records dated from 1996. Furthermore, VA medical professionals have determined that the heart disease was not incurred in service and is not etiologically related to service, including the in-service finding of elevated cholesterol and triglycerides. The medical professionals have explained that there are multiple risk factors for the Veteran’s heart disease and that the likely cause was the Veteran’s smoking history. The record does not include any medical evidence linking the Veteran’s heart disease to service, and the Board finds attributing the heart disease to the finding of elevated cholesterol and triglycerides in 1993 would require resorting to speculation, particularly based on the evidence that elevation of cholesterol and triglycerides is diet-related and not necessarily a chronic condition. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102. Thus, the Board finds that the preponderance of the evidence is against the claim and therefore service connection is not warranted and the claim must be denied. Peripheral Vascular Disease Service treatment records reveal no finding or history of peripheral vascular disease (PVD), service examination records reveal no diagnosis or history indicative of PVD, and the initial notation potentially suggestive of PVD dates in 2004. The Board finds it probative that the post-service treatment records, which date from 1996, do not reveal any diagnosis or histories indicative of PVD prior to February 2004, at which time the Veteran reported a six-month history of symptoms. The Veteran testified that he experienced symptoms in the mid-1990s. Although the Veteran is competent to report his symptomatic history, the Board finds the history provided at the 2016 Board hearing is less credible that that provided at the time of initial treatment in 2004. Accordingly, the Board finds it is not probative evidence of the onset of PVD in the 1990s. Furthermore, VA medical professionals have determined that the PVD was not incurred in service. Thus, the Board finds the PVD was not incurred in service or until many years after separation from service. The Board further finds the PVD is not related to service. The record does not include any medical evidence linking the Veteran’s PVD to service, and VA medical professionals have determined that the PVD is not likely related to service, to include the in-service finding of elevated triglycerides and cholesterol. The medical professionals have provided rationale for their opinions and based them on the evidence of record. The Board notes that the 2019 VA examiner indicated an inability to provide a full opinion due to the Veteran’s failure to report for necessary testing. The Veteran has not provided a justification for his failure to report for the ABI test and the Board finds the matter must be adjudicated on the record. 38 U.S.C. § 3.655. Finally, the Board notes that the record does not suggest that the hypertension is secondary to a service-connected disability. There is no suggestive medical evidence of such a link; notably, the Board has found service connection is not warranted for heart disease. Thus, the Board finds service connection is not warranted, and the claim must be denied. Hypertension Service treatment records reveal no finding or history of hypertension, service examination records reveal no diagnosis of hypertension and negative histories of high blood pressure, and the initial diagnosis dates in 2007. The Board finds it probative that the post-service treatment records, which date from 1996, do not reveal any diagnosis of hypertension and only document two elevated diastolic pressure readings (those dated in August 2002 and September 2003). Furthermore, VA medical professionals have determined that the hypertension was not incurred in service. Thus, the Board finds the hypertension was not incurred in service or until many years after separation from service. The Board further finds the hypertension is not related to service. The record does not include any medical evidence linking the Veteran’s hypertension to service, and VA medical professionals have determined that the hypertension is not likely related to service, to include the in-service finding of elevated triglycerides and cholesterol. The medical professionals have provided rationale for their opinions and based them on the evidence of record. Additionally, the record indicates that the Veteran has been diagnosed with essential hypertension, which is defined as hypertension without known cause, though the medical professionals have indicated that the most likely cause is the Veteran’s smoking history. See https://medical-dictionary.thefreedictionary.com/essential+hypertension (Retrieved December 8, 2020). Finally, the Board notes that the record does not suggest that the hypertension is secondary to a service-connected disability. There is no suggestive medical evidence of such a link; notably, the Board has found service connection is not warranted for heart disease. Thus, the Board finds service connection is not warranted and the claim must be denied. Increased Rating TTR A temporary total disability rating may be assigned under either 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospitalization at a VA medical center or other approved hospital for more than 21 days or for hospital observation at VA expense for a service-connected disability for more than 21 days. 38 C.F.R. § 4.29. Notwithstanding that hospital admission was for disability not connected with service, if during such hospitalization, hospital treatment for a service-connected disability is instituted and continued for a period in excess of 21 days, the increase to a total rating will be granted from the first day of such treatment. 38 C.F.R. § 4.29(b). If service connection for the disability under treatment is granted after hospital admission, the rating will be from the first day of hospitalization if otherwise in order. Id. A temporary total disability rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. The provisions of 38 C.F.R. § 4.29 and §4.30 require treatment for a service-connected disability. The Board has determined that service connection is not warranted for heart disease. Thus, the provisions of 38 C.F.R. § 4.29 and §4.30 do not apply for the June 2009 heart surgery, and the claim must be denied. Left Knee Disability In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Effective February 7, 2021, VA revised the rating criteria for musculoskeletal disabilities. 82 F.R. 35719. As relates to the Veteran’s left knee disability, however, the revised criteria do not impact the adjudication of this issue because they represent no change in the pertinent rating criteria. In any event, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provides that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. Ankylosis of the knee in a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees is assigned a 30 percent rating. A 40 percent rating is assigned for with flexion between 10 and 20 degrees and a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion (ROM) of the knee is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September 2004). An October 2009 VA examination record reveals the Veteran’s history of pain, stiffness, and giving way in the left knee. He denied instability, weakness, incoordination, locking, or effusion. He reported weekly flares that lasted hours and resulted in mild functional impairment. The Veteran reported intermittent use of a cane. Examination revealed normal gait. There was no grinding, instability, or patellar or meniscus abnormality. Range of motion testing revealed motion from 0 to 130 degrees without objective evidence of pain. There was pain after repetition but no additional limitation of motion. Motor strength was full. The Veteran reported that he worked fulltime and denied losing time from work in the previous 12-month period. He reported that the left knee disability affected his occupational functioning due to decreased mobility. A December 2017 VA examination record reveals the Veteran’s history of left knee pain. He reported flares of pain, stiffness, and occasional swelling. He reported that he could not walk or stand for longer periods of time. Range of motion testing revealed motion from 0 to 105 degrees. There was pain with and without motion and weight-bearing, but it did not cause functional loss. There was no additional loss of range of motion after repetition. The examiner determined that pain would significantly limit functional ability with repeated use over time and flares and estimated that motion would be from 0 to 105 degrees. There was no ankylosis. Motor strength was full. Joint stability tests were normal, and there was no history of subluxation or lateral instability. An October 2020 VA examination record reports the Veteran’s history of left knee pain, clicking, popping, weakness, and stiffness. He reported that he was unable to walk or run for long periods. He reported mild to moderate flares a few times per week that lasted from minutes to an hour. He reported that during a flare, he had increased pain, popping, stiffness, and weakness. He reported inability to help move objects or heavy lift and difficulty using stairs. Range of motion testing revealed motion from 0 to 130 degrees with pain. After repetitive use testing, flexion was decreased to 125 degrees due to pain. The examiner reported that pain would limit functional ability with repeated use over time and flares and estimated that range of motion would be limited to 0 to 125 degrees during flares or with repeated use over time. Motor strength was full. There was no ankylosis. Joint stability tests were normal, and there was no history of subluxation or lateral instability. The record indicates that the Veteran worked and lost one to two weeks in the previous 12 months due to his left knee disability. The record indicates that the left knee disability affected occupational functioning due ot limitation of bending, stooping, pushing, pulling, carrying, and lifting moderate objects. The left knee disability is rated at 10 percent for limitation of motion that is not otherwise compensable under the limitation of motion regulations. The Board finds the criteria for a higher rating based on limitation of motion are not met. The record does not suggest limitation of extension. Range of motion testing consistently reveals flexion to at least 105 degrees, and the 2017 and 2020 VA examiners determined that flexion would reach at least 105 degrees during flares or after repeated use over time. Although the 2009 VA examiner did not quantify the effect of flares or repeated use, the Board finds the reported “mild” impairment during flares indicates flexion to at least 105 degrees; testing reveals flexion to 130 degrees and the Board finds the impairment would be characterized as more severe than “mild” if it were associated with additional loss of 25+ degrees flexion. The Board finds no evidence, including history, that the Veteran had limitation of extension or sufficient limitation of flexion to warrant more than the 10 percent rating assigned for limitation of motion including during flares or after repetitive use during this period. With respect to other potentially applicable Diagnostic Codes, there is no clinical evidence of impairment of the tibia and fibula or meniscal abnormality. The Veteran has reported giving way in October 2009 and exercise/work induced instability in February 2016. He otherwise denied instability, however, and clinical testing is consistently normal for joint stability. The record indicates that the Veteran has had instability and risk thereof from disorders distinct from the left knee disability, such as vertigo, and that he has other disabilities that affect his lower extremities, such as peripheral vascular disease. In light of the other conditions affecting the lower extremities, the Board finds the clinical findings are more probative in determining whether the left knee disability has resulted in instability/laxity. In sum, the Board finds the left knee disability did not result in even slight instability or subluxation during this period. Thus, the claim for increased rating for the left knee disability is denied. TDIU A TDIU may be assigned if the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For those veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability. Such cases are referred to the Director of the VA Compensation Service for extra-schedular consideration. 38 C.F.R. § 4.16(b). Service connection is in effect for a left knee disability (10 percent), a lumbar spine disability (10 percent), tinea versicolor (10 percent), pseudofolliculitis barbae (10 percent), and a psychiatric disorder (10) percent. The Veteran is assigned a combined rating of 40 percent. At the July 2016 hearing, the Veteran testified that he stopped working in February 2014. VA examination records dated in August 2019 and October 2020 report that the Veteran is working, however. The Veteran has not submitted a VA form 21-8940; the record does not establish the specific dates of employment and unemployment or indicate whether any employment was not substantially gainful. The Board finds the probative evidence does not suggest that the service-connected disabilities rendered the Veteran unable to obtain or maintain substantially gainful employment so that referral would be warranted for any period of unemployment. VA examination and treatment records do not indicate impairment sufficiently significant to result in unemployability from the service-connected disabilities, and the record does not suggest an improvement in the service-connected disabilities to account for the return to work by August 2019. The Board has considered the doctrine of reasonable doubt in reaching this decision as well but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Thus, the claim is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.