Citation Nr: 21012215 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-13 007 DATE: March 3, 2021 ORDER 1. Entitlement to service connection for bladder cancer as due to exposure to herbicide agents is granted. 2. Entitlement to an initial rating for coronary heart disease, in excess of 10 percent from July 9, 2013 to November 18, 2016, and in excess of 30 percent from March 1, 2017, is denied. FINDINGS OF FACT 1. The Veteran’s bladder cancer is presumed to have been caused by in-service exposure to herbicide agents in the Republic of Vietnam. 2. Prior to November 19, 2016, the Veteran’s coronary heart disease resulted in dyspnea, fatigue, angina, dizziness or syncope at a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs. 3. From March 1, 2017, the Veteran's coronary heart disease resulted in dyspnea, fatigue, angina, dizziness or syncope at a workload of greater than 5 METs but less than 7 METs. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bladder cancer as due to exposure to herbicide agents have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 2. The criteria for entitlement to initial ratings in excess of 10 percent from July 9, 2013 to November 18, 2016, and in excess of 30 percent from March 1, 2017 for coronary heart disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7006. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty, to include service in the Republic of Vietnam, from October 1965 to February 1969. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a May 2015 rating decision. At that time, the Veteran was assigned a 10 percent disability rating for coronary heart disease. The matters were remanded in a December 2019 Board decision for additional development, to include scheduling the Veteran for VA examinations for assessment of his bladder cancer and coronary heart disease. These examinations occurred in February 2020. Thus, there has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In a July 2020 rating decision, the Veteran was assigned a temporary 100 percent disability rating for coronary heart disease for the period from November 19, 2016 to February 28, 2017, and a 30 percent disability rating thereafter, effective March 1, 2017. As the temporary assignment of the 100 percent rating is the maximal possible award, the period from November 19, 2016 to February 28, 2017 is not for consideration herein. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted on a presumptive basis for certain specified diseases as due to herbicide exposure, provided the disease manifests to a compensable degree within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). A veteran must actually set foot within the land borders of Vietnam, to include the contiguous waterways, in order to be entitled to the statutory presumptions for disabilities claimed as a result of exposure to herbicides. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). The Board notes that the National Defense Authorization Act for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. See National Defense Authorization Act for Fiscal Year 2021, Pub. L. 116-283 (enacted Jan. 1, 2021). 1. Entitlement to service connection for bladder cancer The Veteran’s February 2020 VA examination showed the Veteran to have a current diagnosis of bladder cancer, sufficient to establish a present disability for purposes of service connection. The Board has previously conceded the Veteran’s service in the Republic of Vietnam; therefore, he is presumed to have been exposed to Agent Orange and/or herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Bladder cancer is now one of the enumerated diseases presumptively associated with exposure to herbicide agents under 38 U.S.C. § 1116(a). Accordingly, the Veteran's bladder cancer is presumptively linked to his presumed herbicide exposure and service connection for bladder cancer is warranted. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e); see also National Defense Authorization Act for Fiscal Year 2021, Pub. L. 116-283 (enacted Jan. 1, 2021). The Veteran’s claim for service connection for bladder cancer as due to exposure to herbicide agents is granted. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's coronary heart disease is currently rated under DC 7006 for myocardial infarction. The Board notes that the Veteran’s cardiovascular disability was previously considered under DC 7005; however the change to consideration under DC 7006 was made, to the Veteran’s benefit, as the only difference between DCs 7005 and 7006 is the addition of entitlement to a 100 percent rating during and for three months after a myocardial infarction under DC 7006. Under DC 7006, a 10 percent disability rating is warranted when a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required; a 30 percent disability rating is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray; a 60 percent disability rating is warranted for more than one episode of acute, congestive heart failure in the past year, or; when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular (LV) dysfunction with an ejection fraction (EF) of 30 to 50 percent; and a maximum schedular 100 percent disability 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; LV dysfunction with an EF of less than 30 percent. One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination 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. The Board has carefully reviewed the evidence of record and finds that the evidence is against the Veteran’s claim for increased rating for coronary heart disease. The reasons follow. 2. Entitlement to an increased rating for coronary heart disease, in excess of 10 percent from July 9, 2013 to November 18, 2016, and in excess of 30 percent from February 28, 2017 Prior to November 19, 2016 The Veteran had a prior history of myocardial infarction before the appeal period herein, most recently in October 2007. The Veteran underwent an exercise stress test in September 2014. The Veteran completed 7 minutes and 44 seconds of exercise, achieving 10 METs of exercise, limited by shortness of breath, consistent with a 10 percent disability rating. The Veteran was found to have normal resting systolic function, with estimated left ventricular ejection fraction of 67 percent. The exercise test was described as a normal submaximal exercise test, without ECG changes of cardiac ischemia and without symptoms of cardiac ischemia. The Veteran underwent a VA examination in April 2015. The examination report indicated no findings of cardiac hypertrophy or cardiac dilation. The examiner performed an interview-based METs test with results consistent with the Veteran’s September 2014 stress test, indicating the Veteran to be capable of a workload of 7 to 10 METs, characterized by activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The Veteran reported riding an exercise bike four to five times per week without problems and stated that he did not believe his heart to be limiting him. Later that month, treatment records described the Veteran as having stable cardiovascular function in the Veteran’s normal range without the use of vasoactive medication. The Veteran’s coronary heart disease was described as asymptomatic during treatment in December 2015. On examination in February 2016, the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. The Veteran suffered a heart attack on November 19, 2016. However, prior to this time, the record does not contain findings that would warrant a disability rating in excess of 10 percent under DC 7006, including being limited by symptoms of dyspnea, fatigue, angina, dizziness, or syncope with a workload between 5 to 7 METs. As such, the Veteran is not entitled to an increased rating prior to November 19, 2016. From March 1, 2017 Following the Veteran’s November 2016 heart attack, which resulted in the aforementioned temporary 100 percent disability rating for three months, the Veteran was assigned a 30 percent rating as of March 1, 2017, the first day of the month following three months after the myocardial infarction. He has not required additional hospitalization since that time and has alleged that he can walk two to five blocks before dizziness, cheat pain, and fatigue require him to stop for rest. He has been prescribed oral medication in order to manage his cardiovascular symptoms and has not experienced another myocardial infarction. The Veteran underwent an exercise stress test in April 2017. He was able to achieve a workload of 7 METs before being limited by chest discomfort and shortness of breath. These results are consistent with the Veteran’s current 30 percent disability rating. His LVEF was measure at 62 percent and he was assessed with only mild reversible ischemia. His resting systolic function was normal. Treatment notes in June 2018 indicated that the Veteran is able to do most of his activities without limitation. The Veteran underwent another VA examination in February 2020. Based on a review of the record and an interview-based METs test with the Veteran, the examiner indicated that the Veteran could perform a workload of more than 5 but no more than 7 METs before reporting symptoms attributable to a cardiac condition, such as fatigue, angina, dizziness, or jaw tightness. This level of METs was said to be consistent with the activities such as walking one flight of stairs, golfing, mowing the lawn, or performing heavy yardwork. Cardiac dilation was noted to be present, but not cardiac hypertrophy. These findings are consistent with the results of the April 2017 exercise stress test and support the Veteran’s current 30 percent disability rating. Additionally, the Veteran has not recorded an LVEF below 50 percent, or experienced two episodes of acute ischemic heart disease within one year in order to support a 60 percent disability rating or higher. The evidence of record does not contain objective examination findings that warrant a rating in excess of 10 percent prior to November 19, 2016, or in excess of 30 percent from March 1, 2017. For all the reasons stated herein, the preponderance of the evidence is against the Veteran’s claim for initial ratings in excess of those currently assigned to the service-connected coronary heart disease. Accordingly, the benefit of the doubt doctrine is not for consideration and the Veteran’s claim for higher initial ratings is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, Associate 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.