Citation Nr: 21014245
Decision Date: 03/11/21	Archive Date: 03/11/21

DOCKET NO. 16-38 543
DATE: March 11, 2021

ORDER

The motion for reversal of the September 1969 rating decision that denied entitlement to service connection for heart murmur on the basis of clear and unmistakable error (CUE) is denied.

The application to reopen the previously denied claim for service connection for heart murmur is denied.

Entitlement to an effective date prior to December 27, 2010 for the grant of an increased disability rating of 20 percent disabled for peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy; is denied.

Entitlement to an effective date prior to December 27, 2010 for the grant of an increased disability rating of 20 percent disabled for peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy; is denied.

Entitlement to an effective date prior to February 21, 2013 for the grant of an increased disability rating of 20 percent disabled for peripheral neuropathy of the right lower extremity, sciatic nerve associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy; is denied.

Entitlement to an effective date prior to February 21, 2013 for the grant of an increased disability rating of 20 percent disabled for peripheral neuropathy of the left lower extremity, sciatic nerve associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy; is denied.

Entitlement to an effective date prior to October 2, 2019 for the grant of a separate compensable disability rating for peripheral neuropathy of the right lower extremity femoral nerve associated with type II diabetes with erectile dysfunction and left eye diabetic retinopathy; is denied.

Entitlement to an effective date prior to October 2, 2019 for the grant of a separate compensable disability rating for peripheral neuropathy of the left lower extremity femoral nerve associated with type II diabetes with erectile dysfunction and left eye diabetic retinopathy; is denied.

Entitlement to service connection for lung disability is denied.

Entitlement to an initial disability rating in excess of 30 percent prior to October 1, 2014 for coronary artery disease (CAD) and cardiomyopathy status post myocardial infarction is denied.

Entitlement to a disability rating of 60 percent and no higher from October 1, 2014 to December 19, 2014 for CAD and cardiomyopathy status post myocardial infarction is granted.

Entitlement to a disability rating in excess of 30 percent from April 1, 2015 to February 10, 2019 for CAD and cardiomyopathy status post myocardial infarction is denied.

Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, sciatic nerve associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy is denied.

Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, sciatic nerve associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy is denied.

Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, femoral nerve associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy is denied.

Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, femoral nerve associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy is denied.

Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy is denied.

Entitlement to a separate compensable disability rating for left eye diabetic retinopathy is denied.

REMANDED

Entitlement to an effective date prior to February 21, 2012, for the grant of service connection for CAD is remanded.

Entitlement to an effective date prior to February 21, 2013 for the grant of an increased rating to 20 percent disabled for peripheral neuropathy of the right lower extremity is remanded.

Entitlement to an effective date prior to February 21, 2013 for the grant of an increased rating to 20 percent disabled for peripheral neuropathy of the left lower extremity is remanded.

Entitlement to an effective date prior to March 21, 2007 for the grant of service connection for type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy is remanded.

Entitlement to an effective date prior to May 31, 2016 for the grant of service connection for left eye diabetic retinopathy, as an additional noncompensable disability rating associated with the Veteran’s service-connected type II diabetes mellitus is remanded.

FINDINGS OF FACT

1. The September 1969 rating decision, which denied entitlement to service connection for heart murmur was adequately supported by the evidence of record, considered the correct facts as they then existed, correctly applied the statutory or regulatory provisions extant at that time, and did not contain an undebatable or egregious error of fact or law that was outcome determinative.

2. In a September 1969 rating decision, the RO denied the Veteran’s claim for entitlement to service-connection for heart murmur.  The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period.

3. In a September 2007 rating decision, the RO denied the Veteran’s claim for entitlement to service-connection for heart murmur.  The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period.

4. Evidence received since the September 2007 rating decision that denied the Veteran’s claim for entitlement to service connection for heart murmur is new, but does not relate to an unestablished fact necessary to substantiate the claim.

5. In a January 2013 rating decision, the RO granted the Veteran’s claim for entitlement to an increased disability rating for peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy.  The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period.

6. In a January 2013 rating decision, the RO granted the Veteran’s claim for entitlement to an increased disability rating for peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy.  The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period.

7. In a June 2014 rating decision, the RO granted the Veteran’s claim for entitlement to an increased disability rating for peripheral neuropathy of the right lower extremity, sciatic nerve associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy.  The Veteran did not perfect his appeal or submit any new and material evidence within the appeal period.

8. In a June 2014 rating decision, the RO granted the Veteran’s claim for entitlement to an increased disability rating for peripheral neuropathy of the left lower extremity, sciatic nerve associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy.  The Veteran did not perfect his appeal and the decision became final in June 2015.

9. The evidence of a current disability for peripheral neuropathy of the right lower extremity femoral nerve associated with type II diabetes with erectile dysfunction and left eye diabetic retinopathy was established by VA on October 2, 2019.

10. The evidence of a current disability for peripheral neuropathy of the left lower extremity femoral nerve associated with type II diabetes with erectile dysfunction and left eye diabetic retinopathy was established by VA on October 2, 2019.

11. The preponderance of the evidence of record is against finding that the Veteran has had a lung disability at any time during or approximate to the pendency of the claim.

12. The preponderance of the evidence is against finding that the Veteran had a lung disability that began during active service, or is otherwise related to an in-service injury or disease.

13. For the period prior to October 1, 2014, the Veteran’s CAD required continuous medication to control his heart condition.

14. For the period prior to October 1, 2014, the Veteran’s limitation in METs was due to his diabetic peripheral neuropathy of his feet limiting his ability to walk.

15. For the period of October 1, 2014 through December 18, 2014, the Veteran’s CAD produced LVEF 41 percent.

16. For the period from April 1, 2015 through February 10, 2019, the Veteran’s CAD and cardiomyopathy status post myocardial infarction is manifested by no worse than more than greater than 5 to 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; requires continuous medication.

17. For the period from April 1, 2015 through February 10, 2019, the Veteran’s CAD and cardiomyopathy status post myocardial infarction is manifested in a normal LVEF or an LVEF no worse than 53 percent.

18. The Veteran’s peripheral neuropathy of the right lower extremity sciatic nerve is manifest by no more than moderate incomplete paralysis.

19. The Veteran’s peripheral neuropathy of the left lower extremity sciatic nerve is manifest by no more than moderate incomplete paralysis.

20. The Veteran’s peripheral neuropathy of the right lower extremity femoral nerve is manifest by no more than mild incomplete paralysis.

21. The Veteran’s peripheral neuropathy of the left lower extremity femoral nerve is manifest by no more than mild incomplete paralysis.

22. The Veteran’s diabetes mellitus required only restricted diet and one or more daily injection of insulin during the period on appeal.

23. The Veteran’s left eye diabetic retinopathy produces a corrected distance visual acuity of 20/20 or better without restrictions in the visual field.

CONCLUSIONS OF LAW

1. The September 1969 rating decision which denied entitlement to service connection for a heart murmur was not clearly and unmistakably erroneous.  38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105, 3.344, 4.97, Diagnostic Code 7099-7011.

2. The criteria to reopen the Veteran’s claim for entitlement to service connection for heart murmur has not been met.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.

3. The criteria for an effective date prior to December 27, 2010 for entitlement to service connection for peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

4. The criteria for an effective date prior to December 27, 2010 for entitlement to service connection for peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

5. The criteria for an effective date prior to February 21, 2013 for entitlement to service connection for peripheral neuropathy of the right lower extremity, sciatic nerve associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

6. The criteria for an effective date prior to February 21, 2013 for entitlement to service connection for peripheral neuropathy of the left lower extremity, sciatic nerve associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

7. The criteria for an effective date prior to October 2, 2019 for entitlement to service connection for peripheral neuropathy of the right lower extremity femoral nerve associated with type II diabetes with erectile dysfunction and left eye diabetic retinopathy have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

8. The criteria for an effective date prior to October 2, 2019 for entitlement to service connection for peripheral neuropathy of the left lower extremity femoral nerve associated with type II diabetes with erectile dysfunction and left eye diabetic retinopathy have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

9. The criteria for service connection for a lung disability are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

10. The criteria for an initial disability rating in excess of 30 percent for CAD and cardiomyopathy status post myocardial infarction during the period prior to October 1, 2014, have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.114, Diagnostic Code 7005, Diagnostic Code 7006.

11. The criteria for a disability rating of 60 percent for CAD and cardiomyopathy status post myocardial infarction during the period of October 1, 2014 through December 18, 2014 have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.114, Diagnostic Code 7005, Diagnostic Code 7006.

12. The criteria for a disability rating in excess of 60 percent for CAD and cardiomyopathy status post myocardial infarction during the period of October 1, 2014 through December 18, 2014 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.114, Diagnostic Code 7005, Diagnostic Code 7006.

13. The criteria for a disability rating in excess of 30 percent for CAD and cardiomyopathy status post myocardial infarction during the period of April 1, 2015 through February 10, 2019 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.14, 4.114, Diagnostic Code 7005, Diagnostic Code 7006.

14. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity sciatic nerve have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

15. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity sciatic nerve have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

16. The criteria for a disability rating in excess of 20 for peripheral neuropathy of the right lower extremity femoral nerve have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

17. The criteria for a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity femoral nerve have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

18. The criteria for a disability rating in excess of 20 percent for diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913.

19. The criteria for service connection for a separate compensable disability rating for left eye diabetic retinopathy are not met.  38 U.S.C. §§ 1110, 1131, 1155, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.1, 4.3, 4.76A, 4.79, Diagnostic Code 6006, Diagnostic Code 6040, Diagnostic Code 7913.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from November 1967 until his honorable discharge in June 1969.

The Board notes that in May 2020, based on the Veteran’s request, the Attorney withdrew from representation.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from the January 2016, June 2016, and August 2016 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA).

In April 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Denver, Colorado.  A transcript of the hearing has been associated with the record on appeal.  During the hearing, the undersigned held the record open for 60 days to allow for the submission of additional evidence.

In July 2019, the Board remanded the case to the RO for further development.  The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

As noted above, in accordance with the Board remand, the RO sent the Veteran a letter in August 2019 requesting the Veteran to complete and return a VA Form 21-4142 authorizing disclosure to VA.  However, the Veteran did not return the VA Form 21-4142 nor VA Form 21-4142a.  Therefore, the Veteran is hereby notified that the duty to assist is a two-way-street.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information essential in obtaining the relevant evidence.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  Because the Veteran did not respond to the request for information as requested by the Board, the Board will now decide the case based upon the evidence of record.

The Board notes that the Veteran has provided limited lay statements and testimony, including during the April 2017 Board hearing.  However, although the lay statements were considered, they provided either incorrect facts or pertained to matters that the Veteran was not competent to opine.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007).

Clear and Unmistakable Error

Generally, a decision of the VA regional office (RO) that is not timely appealed becomes final and binding in the absence of CUE.  38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103.  If the evidence establishes CUE, the prior decision will be reversed or revised; a finding of CUE has the same effect as if the corrected decision had been made on the date of the prior decision.  38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(a), 3.105(a).

CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated”; and (3) the commission of the alleged error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered.  Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff’d, 642 F. App’x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).  

To establish CUE, the claimant must show, inter alia, that the error would have manifestly changed the outcome.  See Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999).  Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.”  Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)).  The clear-and-unmistakable-evidence standard is an “onerous” one.  Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)).

1. CUE in the September 1969 rating decision that denied entitlement to service connection for a heart murmur

The Veteran filed a Statement in Support of Claim (VA Form 21-4138) asserting that the original denial of service connection in the September 1969 rating decision was incorrect on the basis of CUE.  He noted that the Veteran separated from the United States Army on June 5, 1969 and that his application for service connection was submitted on June 13, 1969 noting that the heart murmur was discovered on June 9, 1969, when he applied for a job after separating from service and the August 5, 1969 VA examination report identified a heart murmur and that the disability was denied based on a constitutional or developmental abnormality not a disability within the law.  The Veteran asserts that the VA adjudicators are not competent to supplement the record with an unsubstantiated medical conclusion.

In February 2017, the RO found (in the statement of the case) no CUE in the September 1969 rating decision because the disorder was considered a constitutional or developmental abnormality and not a disability within the meaning of the law and there was no other evidence of heart disease.  In October 2020, the RO found that there was no CUE in the September 1969 rating decision because although there was no medical opinion at that time clearly identifying his heart murmur as a constitutional or developmental abnormality, it was not considered CUE as it would not have changed the outcome of the decision at that time because there was no evidence of any cardiac complaints, symptoms, or treatment during active duty service to support a finding of service connection on a direct or aggravated basis and there was no evidence that a cardiac disease manifested to a compensable degree within one year of separation from active duty to qualify for service connection under the basis of a presumption.

As a threshold matter, the Board finds that the arguments advanced by the Veteran alleges CUE with the requisite specificity.  See Simmons v. Principi, 17 Vet. App. 104 (2003).  The Board will therefore adjudicate the merits of his claim.

A VA RO denied entitlement to service connection for a heart murmur in a September 1969 rating decision.  The Veteran filed a notice of disagreement in February 1970 and the RO issued a statement of the case in March 1970.  However, the Veteran did not perfect his appeal and this decision became final in September 1970.  See 38 U.S.C. § 1154(a)(1).

In March 2007, the Veteran sought to reopen the claim for entitlement to service connection for a heart murmur.  The RO denied entitlement to service connection for a heart murmur in September 2007 because the Veteran did not submit new and material evidence.  

In August 2015, the Veteran sought to reopen the claim for entitlement to service connection for a heart murmur.  The RO denied entitlement to service connection for a heart murmur in January 2016 because the Veteran did not submit new and material evidence.  In December 2016, the Veteran filed a notice of disagreement to the January 2016 rating decision, as well as in February 2017 submitted a motion asserting that the September 1969 rating decision contained CUE, where the RO denied  entitlement to service connection for a heart murmur.  In April 2017, the Veteran testified that the September 1969 rating decision contained CUE where VA in its notice letter acknowledged service connection for heart disease.  He  explained that the way the notice letter was written it led him to believe that his claim was granted and rated as  noncompensable because it was below 10 percent.  He also asserted that the Veteran would have had to pass his entrance examination without recording a heart murmur and obtain a waiver.

To address the first part of the Veteran’s assertion, that the RO acknowledged heart disease and rated it as noncompensable, is incorrect.  It appears that the Veteran misunderstood the notice letter, which is dated September 23, 1969.  The notice letter has two preformatted denials on the notice letter with a box next to each type of denial.  The letter reads as follows:

Your disability compensation claim has been carefully considered.  To establish entitlement to the benefit, the evidence must show.

. . . .

. . . . 

The evidence, including your service records, does not meet these requirements.  Accordingly, you are not entitled to compensation for the reason(s) checked below:

□ 1. Your disabilities listed below, are service connected, but they are less than 10% disabling and compensation is not payable.

. . . .

. . . .

. . . .

. . . .

□ 2. The disabilities listed below were not incurred in nor aggravated by service.

Heart murmur is a constitutional or developmental abnormality and not a disability within the meaning of the law.  Heart condition and lung condition are not shown by the evidence of record.

September 23, 1969, VA RO Notice Letter.

From a review of the letter, it appears that the Veteran did not read the denial appropriately, as the letter informed him that his claim was denied based on option 2, which had an “X” marked in the box, and specifically stated that his claim was denied because his disorder was considered an abnormality.  It appears that the Veteran only looked at the first choice for the denial, a choice which the RO did not place an X in the box.  Essentially, the Veteran’s assertion does not rise to the level of CUE as the error must be undebatable and there was no error on the part of the RO, where the RO clearly identified the reason for the denial.  As an aside, it is important to note that in 1969, the Veteran only received the notice letter, as the RO did not issue a copy of the rating decision.

To address the second part of the Veteran’s assertion that he was able to pass his entrance examination without recording a heart murmur, the RO explained that the murmur is not transmitted in any other direction, it changes its character according to position, and it disappears after he has done a few deep inspirations and expirations.

The Board notes at the time of the rating decision, the rating board was permitted to rely on its own medical judgment to supports its conclusions.  See Hime v. McDonald, 28 Vet. App. 1, 7 (2016) (finding that a rating panel was not prohibited from relying on its own medical judgment to support its conclusions where the rating panel included a medical member); cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the rating board cannot substitute its own medical judgment for that of medical professionals).  The Board notes that at the time of the decision that the Veteran asserts was decided with a CUE, a medical member of the rating board participated in making the determination and, as signatory to the determination, affirmed his or her agreement with the finding of the rating board.  MacKlem v. Shinseki, 24 Vet. App. 63, 70 (2010) (affirmed No. 2011-7034 (Fed. Cir. Jan. 11, 2012); Boyer v. Brown, 7 Vet. App. 549, 552-53 (1995) (holding that the VA’s position was substantially justified in a pre-Colvin decision relying on its own medical judgment).  “[T]he presence of the medical member on the [rating board], pre-Colvin, allowed the [b]oard to assess the probative value of medical opinions in a way that it now cannot, through the exercise of its own medical expertise and judgment.”  Hime, 28 Vet. App. at 8.

Thus, to the extent of the assertion of CUE to the September 1969 rating decision and notification letter are alleged to be contrary to the medical evidence of record, the Board finds that the rating board relied upon the medical judgment of the medical member, among other things, in deciding the claim.  While the Veteran may not agree with the rating board’s determination, notwithstanding the fact that the Veteran himself provided some of the evidence, this is a disagreement as to how the facts were weighed and cannot be a basis for a finding of CUE.

In this instance, in the September 1969 decision, the RO found that the Veteran’s service treatment records, including entrance and separation examinations were silent of a heart murmur and noted that contrary to the August 1969 VA examination report, which found no heart murmur, the Veteran had a heart murmur which was very short occupying only the first half of the systole and was not transmitted in any other direction and changes its character according to position and disappears after he had done a few deep inspirations and expirations.  Therefore, the RO acknowledged the Veteran’s heart murmur and denied the claim based upon a heart murmur being a constitutional or developmental condition.

The RO also considered other heart condition(s) and/or pulmonary diseases and noted that it was not shown by the evidence of record.  Furthermore, in the March 1970 statement of the case, the RO noted that the heart murmur is not a ratable condition since it is constitutional or developmental and is not considered a disability under the law.  Based on the evidence that was before the RO at the time of the September 1969 decision, it is clear from the face of that decision that the applicable law, including that governing the presumption of soundness, was considered in the RO’s adjudication of the case.  Finally, as noted above, at the time of the September 1969 rating decision, the rating board was permitted to rely on its own medical judgment to supports its conclusions. 

Accordingly, CUE in the September 1969 rating decision that denied entitlement to service connection for heart murmur has not been shown.

New and Material Evidence

In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1100, 20.1103.  A finally disallowed claim, however, may be reopened when new and material evidence is presented or secured with respect to that claim.  38 U.S.C. § 5108.

Regardless of the action taken by the RO, the Board must determine whether new and material evidence has been received subsequent to an unappealed RO denial.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  As part of this review, the Board considers evidence of record at the time of the previous final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim, and evidence submitted since a prior final disallowance.  Evans v. Brown, 9 Vet. App. 273, 285-86 (1996).

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary’s duty to assist or consideration of a new theory of entitlement.  Shade, 24 Vet. App. at 117-18.

2. New and material evidence to reopen the claim of service connection for heart murmur

The Veteran applied for service connection for a heart murmur in June 1969.  This claim was denied in a September 1969 rating decision because it was considered a congenital disorder and not considered a disability within the meaning of the law.  Notably, the RO, inter alia, also denied a claim for a heart condition as it was not shown by the evidence of record.  The Veteran filed a notice of disagreement in February 1970.  In March 1970, the RO issued a statement of the case and denied the Veteran’s claim for a heart murmur because the disability is not a ratable disability since it is a constitutional or developmental abnormality and is not considered a disability under the law.  Furthermore, the RO noted that the heart condition and pulmonary disease as claimed by the Veteran are not shown by any evidence of record in the service nor was it found based on examination August 1969.  The Veteran did not appeal this claim, and it became final in September 1970.

The Veteran applied for service connection for a heart murmur in March 2007.  This claim was denied in the September 2007 rating decision because the Veteran did not submit new and material evidence.  The Veteran did not timely file a notice of disagreement and the decision became final in September 2008.

The Veteran applied for service connection for a heart murmur in August 2015.  This claim was denied in the January 2016 rating decision because the Veteran did not submit new and material evidence.  The Veteran timely filed a notice of disagreement in December 2016.  In February 2017, the RO issued a statement of the case affirming the January 2016 rating decision and the Veteran timely perfected his appeal to the Board by filing an Appeal to Board of Veterans’ Appeals (VA Form 9) in March 2017.

Evidence submitted since the September 2007 final rating decision includes a July 2013 Statement in Support of Claim (VA Form 21-4138); August 2015 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ); Eastern Colorado Healthcare Systems VA Treatment Records from January 4, 2008 through June 25, 2010 and from January 4, 2013 through December 20, 2013; Aurora CBOC VA Treatment Records from May 1, 2002 through December 28, 2007, from January 9, 2012 through December 27, 2012, and from January 7, 2014 through December 29, 2014; Houston VAMC treatment records from August 10, 2010 through April 12, 2012; Golden VA Clinic treatment records from September 22, 2015 through April 23, 2016; Denver VAMC treatment records from January 1, 2015 through June 15, 2016; December 2016 Notice of Disagreement (VA Form 21-0958); Denver VAMC treatment records from August 18, 2016 through February 24, 2017; February 2017 Statement in Support of Claim asserting that the September 1969 rating decision denying entitlement to service connection for heart murmur was on the basis of CUE; March 2017 Appeal to Board of Veterans’ Appeals (VA Form 9); April 2017 Board Hearing testimony; April 2018 congressional inquiry with the Office of Congressman Mike Coffman; Rocky Mountain Regional Medical Center VA treatment records from May 1, 2002 through December 31, 2006, from January 4, 2013 through December 20, 2013, from January 8, 2018 through March 1, 2019, and from March 7, 2019 through March 14, 2019; Aurora CBOC VA Treatment Records from January 27, 2007 through December 19, 2008, from January 6, 2009 through December 27, 2012, from January 7, 2014 through October 13, 2015, and from January 6, 2016 through December 20, 2017; Montgomery County VA treatment records from April 2, 2019 through April 6, 2019; Aurora CBOC VA Treatment Records from March 27, 2019 through April 2, 2019; Washington VAMC treatment records from April 23, 2019 through July 17, 2019; Rocky Mountain VAMC treatment records from April 29, 2019 through August 23, 2019; Washington VAMC treatment records from January 17, 2019 through October 28, 2019; Rocky Mountain VAMC treatment records from July 14, 2019 through August 29, 2019; Rocky Mountain VAMC treatment records from May 1, 2002 through September 13, 2012; Washington VAMC treatment records from 01.24.2020 through 05.13.2020 and from May 27, 2020 through October 5, 2020.

The Board finds that the Veteran did not submit new and material evidence for the claim of entitlement to service connection for a heart murmur.  Specifically, new evidence is medical evidence addressing an unestablished fact, such as showing that the Veteran has a heart murmur that considered a disability within the meaning of the law.  As this new evidence fails to show a more complete picture of the circumstances surrounding the origin of the Veteran’s heart murmur, including because the information was of record in the prior final decisions, the Board is unable to reopen this claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); see also Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998) (noting that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant the claim).  To this extent, the Veteran’s claim is denied and does not raise a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.

Earlier Effective Date

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation 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.”  Thus, “the plain language of [section] 5110(b)(2)…only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim.”

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  

Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155.

3. Entitlement to an effective date prior to December 27, 2010 for the grant of an increased disability rating of 20 percent disabled for peripheral neuropathy of the right upper extremity associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy

4. Entitlement to an effective date prior to December 27, 2010 for the grant of an increased disability rating of 20 percent disabled for peripheral neuropathy of the left upper extremity associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy

5. Entitlement to an effective date prior to February 21, 2013 for the grant of an increased disability rating of 20 percent disabled for peripheral neuropathy of the right lower extremity, sciatic nerve associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy

6. Entitlement to an effective date prior to February 21, 2013 for the grant of an increased disability rating of 20 percent disabled for peripheral neuropathy of the left lower extremity, sciatic nerve associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

Once there is a final decision in which the RO grants a benefit and assigns an effective date, a claimant who has not timely appealed that effective date cannot subsequently make a “freestanding” claim for an earlier effective date for that benefit after the expiration of the one-year period for appealing the assigned effective date.  Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that where there was a prior final decision of record that assigned an effective date, absent a contention of clear and unmistakable error (CUE) or petition to reopen the previous decision, non-specific “freestanding” claim for an effective date would vitiate the rule of finality and should be dismissed).  A final decision can only be overcome by a request for revision based on CUE or by a request to reopen based upon new and material evidence.  38 C.F.R. § 3.105(a).

In the present case, the issues of entitlement to an increased disability rating for peripheral neuropathy of the bilateral upper extremities associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy were decided in the January 2013 rating decision.  The Veteran did not perfect his appeal, and the January 2013 rating decision became final in January 2014.  Furthermore, the issues of entitlement to an increased disability rating for peripheral neuropathy of the bilateral lower extremities of the sciatic nerves associated with II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy were decided in the June 2014 rating decision and affirmed in the September 2015 statement of the case.  The Veteran did not perfect his appeal and the June 2014 rating decision became final in November 2015.

Because the Veteran did not timely appealed, the Veteran cannot subsequently make a “freestanding” claim for an earlier effective date for that benefit after the expiration of the one-year period for appealing the assigned effective date for the above claims.  Accordingly, the claim for an earlier effective date is denied.  There is no doubt to resolve.  38 U.S.C. § 5107(b).

7. Entitlement to an effective date prior to October 2, 2019 for the grant of a separate compensable disability rating for peripheral neuropathy of the right lower extremity femoral nerve associated with type II diabetes with erectile dysfunction and left eye diabetic retinopathy

8. Entitlement to an effective date prior to October 2, 2019 for the grant of a separate compensable disability rating for peripheral neuropathy of the left lower extremity femoral nerve associated with type II diabetes with erectile dysfunction and left eye diabetic retinopathy

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The question for the Board is whether VA received an informal or formal claim for compensation for this disability prior to October 2, 2019. 

The Board concludes that, although the Veteran may have had a peripheral neuropathy of the bilateral lower extremity femoral nerves prior to October 2, 2019, VA did not receive a claim for compensation prior to October 2, 2019 and that the effective date of the award for compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). 

In this case, VA received an original claim of entitlement to an increased disability rating for bilateral radiculopathy of the lower extremities on May 31, 2016, Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) (May 31, 2016).  The RO subsequently denied that claim.

The Veteran timely appealed the claim to the Board and after two Board remands, the RO granted the Veteran separate compensable disability ratings for peripheral neuropathy of the femoral nerves for the Veteran’s bilateral lower extremities.

The Board notes that during the period on appeal for the Veteran’s peripheral neuropathy disabilities, there have been multiple VA examinations.  Specifically, the relevant examinations are from June 2016 and October 2019.  The Board notes that the June 2016 VA examiner found that the Veteran had normal femoral nerves.  However, the October 2019 VA examiner found that the Veteran had mild incomplete paralysis of the bilateral femoral nerves and the RO subsequently granted service connection for a separate compensable disability in accordance with the October 2019 VA examination, effective October 2, 2019, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)).

Having carefully reviewed the evidence of record, the Board finds no basis upon which to assign an effective date earlier than October 2, 2019, for the grant of an increased disability rating for peripheral neuropathy of the bilateral lower extremity femoral nerves.  There is no communication prior to October 2, 2019, that could be reasonably construed as a claim of entitlement to benefits.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a Veteran suffers from a disability does not establish intent on the part of the Veteran to seek connection for that disability.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  Although the Board accepts that the Veteran had the increased severity of his disability prior to the date of his VA examination on October 2, 2019, the law dictates that the effective date of service connection is the date of the receipt of the claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  Therefore, the effective date for the grant of a separately compensable disability rating is appropriately October 2, 2019, for the Veteran’s peripheral neuropathy of the bilateral lower extremity femoral nerves, and no earlier. 

Accordingly, the claim for an earlier effective date is denied.  There is no doubt to resolve.  38 U.S.C. § 5107(b).

Service Connection

Service connection may be granted for a 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).  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 discharge 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).

In addition, service connection for certain chronic diseases, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015).  Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).

Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Veteran’s Benefits Act of 1998, enacted as Subtitle B of Public Law No. 105-178, § 8202, 112 Stat. 492, amended 38 U.S.C. §§ 1110 and 1131 to prohibit VA compensation for disabilities attributable to a Veteran’s use of tobacco products in service.

That legislation was approved on June 9, 1998; and was made effective for all claims filed thereafter.  Then, in Public Law No. 105-206, § 9014, 112 Stat. 865, approved on July 22, 1998, the amendments made by section 8202 of the previous statute were rescinded.  Rather than amending 38 U.S.C. §§ 1110 and 1131, section 9014 created a new 38 U.S.C. § 1103 which provides, in pertinent part, as follows:

Notwithstanding any other provision of law, a Veteran’s disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service for purposes of this title on the basis that it resulted from injury or disease attributable to the use of tobacco products by the Veteran during the Veteran’s service.

Thus, section 1103 bars an award of service connection for a disability arising long after service based upon a finding that such disability was caused by tobacco use during service.  It does not, however, preclude the establishment of service connection based upon a finding that a disease or injury (even if tobacco-related) became manifest or was aggravated during active service or became manifest to the requisite degree of disability during any applicable presumptive period specified in 38 U.S.C. §§ 1112, 1116.  See 38 U.S.C. § 1103(b).  See also VAOPGCPREC 6-2003.

9. Entitlement to service connection for lung disability

The Veteran asserts that his lung disability began during service and has existed since that time and/or it is related to an in-service chemical exposure related to in-service duties as a petroleum storage specialist.

First, the Board finds that the Veteran does not have a current disability.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).

The Veteran was afforded a VA evaluation in July 2020.  The Board notes that due to the COVID-19 pandemic, a telephone interview was attempted but the examiner determined that ultimately, it was not necessary to complete the examination.  The July 2020 VA examiner opined that the Veteran does not currently have, nor has he been diagnosed with a respiratory condition.  However, the VA examiner noted that the Veteran’s VA treatment records reflect a possibility of COPD with no evidence of a confirmed respiratory condition.  Furthermore, the July 2020 VA examiner noted that the Veteran’s pulmonary edema is secondary to his hypertension and obstructive sleep apnea disabilities.  Because of the inability to afford the Veteran an in-person VA examination due to the COVID-19 pandemic, the Board will also address the other two elements of service connection.

Second, even if the Board found that the Veteran had a current disability, the Board finds that there was no in-service event, injury or disease.  See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d).  The Veteran does not assert, nor does the record reflect an in-service onset of a lung disability.  The Veteran’s STRs, entrance examination, and separation examination all reflect clinical evaluation with no complaints of lung disabilities.  Furthermore, the July 2020 VA examiner noted treatment for bronchitis in 1974 with no reference to a spot on his lungs on future x-ray examination(s).  Finally, the VA examiner accurately noted that (in contrast to the July 2019 Board remand) that the Veteran was not denied employment due to a lung disability.  The Veteran asserted that a lung disability was discovered subsequent to the heart murmur diagnosis, but there is no evidence that there was a lung disability that manifested sufficiently to identify the disease entity, and sufficient observation to establish chronicity and continuity of symptoms after discharge.  38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Thus, without more, the preponderance of the evidence is against a finding of an in-service incurrence of a lung disability.  The second element of service connection has not been met, and an award of service connection is not warranted.  See Holton, supra.  Accordingly, service connection is denied.

Finally, the Board will address a nexus.  The Board finds that the evidence of record does not support a finding that the Veteran’s disability (if there is one) is related to active service.  The July 2020 VA examiner noted that the Veteran’s acute pulmonary edema is due to his underlying hypertension and obstructive sleep apnea.  The July 2020 VA examiner explained that the Veteran was treated for bronchitis in 1974 with no reference to a spot on lung on future x-rays and noted that the Veteran has a 55 year history of tobacco use with more recent notes showing possible COPD, being diagnosed with pulmonary hypertension in 2009/2010.  For the above reasons, the July 2020 VA examiner concluded that there is no nexus between the Veteran’s lung disability and his active duty or military occupational specialty as a petroleum storage specialist as no chronic lung condition currently exists and that lay statements are not supported by evidence.  Accordingly, entitlement to service connection for lung disability is denied.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board notes that within the Veteran’s December 2016 Notice of Disagreement (VA Form 21-0958), the Veteran indicates that he wished to appeal service connection, effective date of award, and evaluation of disability (lung condition).  Because the Veteran has been denied service connection, and never has been service connected for his lung disability, the other areas of disagreement are not applicable.

Initial Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  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 for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time.  Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings).  When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim.  Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).  When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed.  Hart, 21 Vet. App. at 509.

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

Under 38 U.S.C. § 5110(a), the effective date for awards in a veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(b)(2) provides an exception to this general rule: “The effective date of an award of increased compensation 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.”  Thus, “the plain language of [section] 5110(b)(2) …only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim.”

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  

Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155.

10. Entitlement to an initial disability rating in excess of 30 prior to October 1, 2014 for CAD and cardiomyopathy status post myocardial infarction

11. Entitlement to a disability rating in excess of 30 percent from October 1, 2014 to December 20, 2014 for CAD and cardiomyopathy status post myocardial infarction

12. Entitlement to a disability rating in excess of 30 percent from April 1, 2015 to February 10, 2019 for CAD and cardiomyopathy status post myocardial infarction

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

The Veteran asserts that he is entitled to a higher rating because his symptoms warrant a higher disability rating.  Furthermore, the Veteran asserts that he had to go to the hospital in 2014, 2015, and 2017 due to his CAD.

As a preliminary matter, the Board notes that the Veteran’s disability was initially rated under Diagnostic Code 7005.  The RO rated the Veteran’s disability under the criteria of Diagnostic Code 7006 from December 20, 2014, but did not change the Veteran’s Diagnostic Code until February 11, 2019.  Specifically, the RO increased the Veteran’s disability rating to a 100 percent disability rating for three months following myocardial infarction incident, in accordance with Diagnostic Code 7006.  Following just over three months at a 100 percent disability rating (from December 20, 2014 through March 31, 2015), the Veteran’s disability rating was reduced to a 30 percent disability rating effective April 1, 2015.

Under Diagnostic Code 7006, during and for three months following a myocardial infarction, documented by laboratory tests, a 100 percent disability rating is warranted and thereafter is rated as described below.  38 C.F.R. § 4.104, Diagnostic Code 7006.

Under Diagnostic Code 7005 (arteriosclerotic heart disease/coronary artery disease) and Diagnostic Code 7006 (myocardial infarction), a 10 percent disability rating is assigned for a workload of greater than 7 METs but not greater than 10 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required.

A 30 percent rating is assigned for 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.  Id.

A 60 percent rating contemplates 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 which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent to 50 percent.  Id.

A 100 percent rating is warranted for coronary artery disease resulting in chronic congestive heart failure; or, workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is LVEF of less than 30 percent.  Id.

One MET (metabolic equivalent) 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. 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.  38 C.F.R. § 4.104, Note (2).

Thus, for the higher, 60 percent or 100 percent disability rating, the evidence must show the severity of his disability approximates: more than one episode of acute congestive heart failure in the past year, or workload of 5 METs or less (due to the Veteran’s heart condition) which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 50 percent.  The Board finds none of these are present or approximated.

Prior to October 1, 2014

The Veteran was afforded a VA examination in June 2014.  The June 2014 VA examiner found that the Veteran’s CAD produced between greater than 3 METs but not greater than 5 METs, left ventricular ejection fraction (LVEF) of 50-55 percent with normal wall motion, but had not produced congestive heart failure.  However, the June 2014 VA examiner noted that the METs level limitation was not due solely to the Veteran’s heart conditions.  In contrast, the Veteran’s METs level limitation is due to the Veteran’s service-connected peripheral neuropathy of the feet which causes limitation in walking.  Finally, the June 2014 VA examiner noted that the Veteran required continuous medication to control his heart condition.

The record reflects that during this period on appeal (including up to one year prior to the grant of entitlement to service connection), the Veteran had one incident of acute congestive heart failure in October 2011.

The Board notes that during this period on appeal, the Veteran’s VA treatment records do not reflect any period that was inconsistent with the June 2014 VA examination report.  Furthermore, the record does not contain any private treatment records inconsistent with the June 2014 VA examination report.

Because the Veteran’s limitation of METs is due to a non-cardiac disability, and no criteria for a higher evaluation is met, an increased disability rating is not warranted for the Veteran’s CAD.  For the Veteran’s CAD disability to warrant a disability rating in excess of 30 percent, the evidence must demonstrate that the Veteran’s CAD produced more than one episode of acute congestive heart failure within the past year, or workload of not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 50 percent.

Furthermore, the Board notes that the Veteran was granted service connection in February 2012, more than three months following his October 2011 acute congestive heart failure.  Because the Veteran’s single incident of acute congestive heart failure occurred more than three months prior to the grant of service connection, the Veteran is not entitled to the three months of a 100 percent disability rating following the acute congestive heart failure incident.

The evidence does not support a finding that the Veteran’s CAD produced more than one episode of acute congestive heart failure within the past year, or workload of not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 50 percent.

From October 1, 2014 through December 19, 2014

The Veteran’s October 2014 VA treatment records from the Aurora CBOC reflects an LVEF of 41 percent.  See October 2014 Aurora CBOC VA Treatment Records.  In accordance with Diagnostic Code 7005, an LVEF of 30 to 50 percent warrants a disability rating of 60 percent, and no higher.

Specifically, to be awarded a higher disability rating in excess of 60 percent, the evidence must show the severity of his CAD disability produces chronic congestive heart failure; or, workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is LVEF of less than 30 percent.  Unfortunately, the evidence does not demonstrate such. 

From April 1, 2015 to February 10, 2019

The Veteran was afforded a VA examination in September 2015.  The September 2015 VA examiner found that the Veteran’s CAD produced LVEF of 50 to 55 percent.  During the September 2015 VA examination, as to the METs test, the Veteran denied experiencing any symptoms attributable to a cardiac condition with any level of physical activity.  It was noted that any physical limitations was due to the Veteran’s diabetes condition, not his heart condition.

The September 2015 Denver Health treatment records reflect that left ventricle is normal size with severe concentric left ventricular hypertrophy and low normal systolic function; right ventricle is grossly normal in size and systolic function; mild bilateral enlargement; moderate aortic root dilation; and imaging studies are similar to the Veteran’s June 2014 findings.  The private provider noted normal sinus rhythm, with LVEF by visual assessment of 50 to 55 percent with no regional wall motion abnormalities noted.

The Veteran was afforded a second VA examination in April 2016.  The April 2016 VA examiner found that the Veteran’s CAD produced LVEF of 65 percent and a METs of greater than 3 but not more than 5.  The April 2016 VA examiner noted that 60 percent of the Veteran’s METs level is due to chronic obstructive disease (COPD) with the development of shortness of breath with exertion, finding that the Veteran’s METs level due solely to the cardiac condition(s) was greater than 5 to 7 METs.

The Board notes that the Veteran’s VA treatment records during the period on appeal reflect one incident of acute congestive heart failure in December 2014 and either normal LVEF or a LVEF above 50.

As no criteria for a higher evaluation is met, one is not warranted.  Specifically, for the Veteran’s CAD disability to warrant a disability rating in excess of 30 percent, the evidence must demonstrate that the Veteran’s CAD produced more than one episode of acute congestive heart failure in the past year, or workload of not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 50 percent.  Although the April 2016 VA examiner found that the Veteran had a METs of less than 5, the examiner noted that the Veteran’s CAD alone produced a METs of 5 to 7 with the remaining severity due to the Veteran’s non-service-connected COPD.

13. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, sciatic nerve associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy 

14. Entitlement to a disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, sciatic nerve associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy

15. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity, femoral nerve associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy

16. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, femoral nerve associated with type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

Subsequent to the July 2019 Board remand of the issues of entitlement to a disability rating in excess of 20 percent for the Veteran’s peripheral neuropathy of the bilateral lower extremities, the RO addressed the issues by splitting the issues into four distinct issues providing a 20 percent disability rating for the Veteran’s bilateral lower extremities of both the sciatic and femoral nerves.  Those issues have now returned to the Board on appeal and shall be addressed below.

The Veteran asserts that he is entitled to a higher rating because his symptoms warrant a disability rating in excess of 20 percent.

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520.  Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Moderately severe incomplete paralysis is rated as 40 percent disabling.  Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling.  Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling.  38 C.F.R. § 4.124a.  

Paralysis of the femoral is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526.  Under these criteria, mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Severe incomplete paralysis is rated as 30 disabling.  Complete paralysis of quadriceps extensor muscles is rated as 40 percent disabling.  38 C.F.R. § 4.124a.

The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule.  Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance.  38 C.F.R. § 4.120.  Consideration is also given for loss of reflexes, pain, and muscle atrophy.  See 38 C.F.R. §§ 4.123, 4.124.

The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.  The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor.  38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.”  The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory.  See Miller v. Shulkin, 28 Vet. App. 376 (2017).  

The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement.  See 38 C.F.R. § 4.123.

The Veteran was afforded VA examinations in June 2016 and October 2019.

Regarding impairment of motor functions, both the June 2016 VA examiner and October 2019 VA examiner found normal muscle strength.

Regarding trophic changes, the June 2016 VA examiner found trophic changes of smooth skin with loss of hair on the Veteran’s feet.  However, the October 2019 VA examiner did not find trophic changes attributable to diabetic peripheral neuropathy.

Regarding sensory disturbance, the June 2016 VA examiner found decreased light touch/monofilament in the ankle/lower leg and foot/toes.  However, the October 2019 VA examiner found normal light touch/monofilament in the bilateral knees, bilateral ankle/lower legs, and bilateral foot/toes.

Regarding loss of reflexes, the June 2016 VA examiner found decreased reflexes of the bilateral knees and ankles.  However, the October 2019 VA examiner found normal reflexes of the bilateral knees and ankles.

Regarding pain, the June 2016 VA examiner noted that the Veteran reported constant moderate pain and mild intermittent pain in the bilateral lower extremities.  The October 2019 VA examiner noted that the Veteran reported mild intermittent pain in the bilateral lower extremities.

Regarding muscle atrophy, neither the June 2016 VA examiner nor the October 2019 VA examiner found that the Veteran had muscle atrophy in his lower extremities.

Regarding complete paralysis, the June 2016 VA examiner found that the Veteran had moderate incomplete paralysis of the bilateral sciatic nerves and normal femoral nerves.  However, the October 2019 VA examiner found that the Veteran had mild incomplete paralysis of the bilateral sciatic and femoral nerves.

Based on the above, the Board finds that the disability is primarily manifest by impairment of motor functions, sensory disturbance (prior to October 2019), loss of reflexes (prior to October 2019), and pain.  The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, sensory disturbance (from October 2019), loss of reflexes (from October 2019), muscle atrophy, or complete paralysis.  The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis prior to October 2019 and mild incomplete paralysis from October 2019.

The Board has considered all other potentially applicable Diagnostic Codes, including Diagnostic Codes 8510, 8511, 8512, 8514, 8515, 8516, 8517, 8518, 8519, 8521, 8522, 8523, 8524, 8525, 8527, 8528, 8529, and 8530.  However, there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service connected.  Specifically, the Veteran is currently service connected for peripheral neuropathy of the bilateral upper extremities (Diagnostic Code 8513 for all radicular groups), peripheral neuropathy of the bilateral lower extremity sciatic nerves (Diagnostic Code 8520), and peripheral neuropathy of the bilateral lower extremity femoral nerves (Diagnostic Code 8526).  Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.  

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 20 percent for peripheral neuropathy of the bilateral lower extremities of the sciatic and femoral nerves for the respective periods on appeal.  In denying such a rating, the Board finds the benefit-of-the-doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

17. Entitlement to a disability rating in excess of 20 percent for type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy

The Veteran asserts that he is entitled to a higher disability rating.

Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria.  Each higher rating includes the same criteria as the lower rating plus distinct new criteria.  Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013).  

A 10 percent rating is warranted when diabetes is manageable by restricted diet only.  A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet.  A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities.  Regulation of activities is defined as avoidance of strenuous occupational and recreational activities.  A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated.  A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation.  Noncompensable complications of diabetes are considered part of the diabetic process.  38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1).

Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded.  A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating.  However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018).

The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities.  Regulation of activities is defined as avoidance of strenuous occupational and recreational activities.  This criterion requires medical evidence.  Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007).

The Board finds that the Veteran’s diabetes mellitus requires only a restricted diet and one or more daily injections of insulin during the period on appeal.  Specifically, the Veteran was afforded VA examinations in May 2014, June 2016, and October 2019, and all of the VA examiners found that the Veteran did not have regulation of activities as part of medical management for his service-connected diabetes mellitus.  Notably, the Veteran is competent in general to report reduction in activities, discussions of a reduction in activities with his physician, and his reports are credible.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, his lay statements were evaluated by the medical examiners, who overall determined that the regulation of activities was not required.  Essentially, while the Veteran is competent to state that he believes that he is required to reduce his activities, the Schedule for Rating Disabilities requires that a medical professional order such as part of his medical regimen.  Given such, the Veteran’s symptomatology does not satisfy the next higher rating.

The Board notes that the Veteran has complications of his type II diabetes mellitus.  Specifically, the Veteran is service connected for noncompensable disabilities of erectile dysfunction and left eye diabetic retinopathy that are associated with the current disability rating.  Additionally, the Veteran is service connected for separate compensable disability ratings for peripheral neuropathy of the bilateral upper extremities and bilateral lower extremities including both the sciatic and femoral nerves.

Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal.

18. Entitlement to a separate compensable disability rating for left eye diabetic retinopathy

The Veteran asserts that he is entitled to a separate compensable disability rating for his diabetic retinopathy.

During the pendency of the Veteran’s appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that address the organics of special sense and schedule of ratings-eye.  83 Fed. Reg. 15316 (April 10, 2018).  The final rule went into effect May 13, 2018.  Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments.

Under both the former and revised criteria, a 10 percent disability rating is warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are centrally located and that result in an irregular, duplicated, enlarged, or diminished image.  Both versions of the criteria also provide for an alternative basis for the evaluation if it results in a higher disability rating.  Under the former criteria, the alternative evaluation is based on the General Rating Formula for Diseases of the Eye.

The General Rating Formula for Diseases of the Eye instructs to evaluate the disability based on visual impairment or its rating criteria for incapacitating episodes.  Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes.

The Board also notes that in the May 2018 changes also include a change to the Note(s) under General Rating Formula for Diagnostic Codes 6000 through 6009.  Specifically, prior to the May 2018 changes, the Note provided “For VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider.”  However, subsequent to the May 2018 changes, there are now three notes under General Rating Formula for Diagnostic Codes 6000 through 6009.  Note: (1) provides “For the purposes of evaluation under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes.  Note: (2) provides “examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions.”  Note: (3) provides for the purposes of evaluating visual impairment due to the particular condition, refer to 38 C.F.R. §§ 4.75 through 4.78 and 4.79, Diagnostic Codes 6061-6091.

Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye.  38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009.  Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066.  Impairment of Visual Fields is rated under Diagnostic Codes 6080 through 6081.

The Veteran is service-connected for left eye diabetic retinopathy secondary to his service-connected type II diabetes mellitus.  However, as will be addressed below, because the Veteran’s left eye diabetic retinopathy is non-compensable.

Diabetic Retinopathy is rated under Diagnostic Code 6040.  Diagnostic Code 6040 is rated under Diagnostic Code 6006 for retinopathy or maculopathy.

The criteria under Diagnostic Codes 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation.  38 C.F.R. § 4.79.  Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent disability rating is warranted.  Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent disability rating is warranted.  Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent disability rating is warranted.  Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent disability rating is warranted.  A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider.  Id.

Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. §§ 4.76(a), 4.79.  The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found.  38 C.F.R. § 4.76(b).  Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function.  Id.  Unless medically contraindicated, the fundus must be examined with the Veteran’s pupils dilated.  Id.

The evaluation for visual impairment of one eye must not exceed 30 percent unless there is anatomical loss of the eye.  38 C.F.R. § 4.75(d).  Combine the evaluation for visual impairment of one eye with evaluation for other disabilities of the same eye that are not based on visual impairment (e.g., disfigurement under diagnostic code 7800).  Id.

When the Veteran has anatomical loss of one eye and is unable to wear a prosthesis, increase the evaluation for visual acuity under diagnostic code 6063 by 10 percent, but the maximum evaluation for visual impairment of both eyes must not exceed 100 percent.  A 10-percent increase under the paragraph precludes an evaluation under diagnostic code 7800 based on gross distortion or asymmetry of the eye but not an evaluation under diagnostic code 7800 based on other characteristics of disfigurement.]

Examinations of visual acuity must include the central uncorrected and corrected visual acuity for distance and near vision using Snellen’s test type or its equivalent.  38 C.F.R. § 4.76(a).  Evaluation of central visual acuity on the basis of corrected distance vision with central fixation, even if a central scotoma is present.  38 C.F.R. § 4.76(b).  However, when the lens required to correct distance vision in the poorer eye differs by more than three diopters from the lens required to correct distance vision in the better eye (and the difference is not due to congenital or developmental refractive error), and either the poorer eye or both eyes are service connected, evaluate the visual acuity of the poorer eye using either its uncorrected or corrected visual acuity, whichever results in better combined visual acuity.  Id.

For evaluations of restrictions in visual field(s), the examiner must use either Goldmann kinetic perimetry or automated perimetry using Humphrey Model 750, Octopus Model 101, or later versions of these perimetric devices with simulated kinetic Goldmann testing capability.  38 C.F.R. § 4.77.

Determination of the average concentric contraction of the visual field of each eye by measuring the remaining visual field (in degrees) at each of the eight principal meridians 45 degrees apart, adding them, and dividing the sum by eight.  38 C.F.R. § 4.77(b).  To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of 38 C.F.R. § 4.25.

An October 2019 VA examination report reveals that the Veteran had a slight blur in his left eye.

10.07.2019	 

 	Uncorrected Distance	Corrected Distance	Uncorrected Near	Corrected Near

RIGHT	20/70	20/20 or better	20/40	20/20 or better

LEFT	20/40	20/20 or better	20/40	20/20 or better

The October 2019 VA examination report also revealed that the Veteran has a documented visual field defect.

 	Normal	Right	Left

Up	45	15	30

Up Temporally	55	10	40

Temporally	85	8	70

Down Temporally	85	70	65

Down	65	60	55

Down Nasally	50	35	50

Nasally	60	45	50

Up Nasally	55	25	35

The Veteran’s average concentric contraction of the visual field of each eye results in a right eye contraction of 33.5 degrees and left eye contraction of 49.375 degrees.

However, the Board notes that the October 2019 VA examiner opined that the Veteran’s defects in his visual acuity and his visual field are due to bilateral cataracts and ptosis that are separate and unrelated to the Veteran’s service-connected diagnosis of diabetic retinopathy of the left eye.  The October 2019 VA examiner opined that the Veteran’s cataract and ptosis are both age-related and not related to the Veteran’s service-connected very mild diabetic retinopathy.  Therefore, the visual field defect is not applicable for rating the Veteran’s service-connected left eye disability because they are due to his non-service-connected bilateral cataracts and ptosis that are separate and unrelated to the Veteran’s service-connected diagnosis of mild diabetic retinopathy of the left eye.

Based on the evidence above, a compensable disability rating for the Veteran’s loss of visual acuity is not warranted.

The Veteran’s visual acuity of 20/20 corrected distance of the service-connected left eye warrants a noncompensable disability rating.  Additionally, the Veteran’s average contraction of the visual field does not warrant an additional disability rating because it is not related to the Veteran’s service-connected diabetic retinopathy of the left eye.  Therefore, the Veteran’s results for visual acuity results in a noncompensable disability rating.

Accordingly, the preponderance of the evidence is against the claim of entitlement to a compensable disability rating for a loss of visual acuity.  In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Because the Veteran’s diabetic retinopathy of the left eye is non-compensable, he is not entitled to a separate disability rating for his diabetic retinopathy of the left eye.

Diagnostic Code 7913, Note (1) provides that to evaluate compensable complications of diabetes separately unless they are part of the criteria used to support a 100 percent disability evaluation and noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913.  Because the Veteran’s left eye diabetic retinopathy results in a noncompensable disability rating, the Veteran’s left eye is not eligible for a separate disability rating and shall be rated with the Veteran’s type II diabetes mellitus.

REASONS FOR REMAND

1. Entitlement to an effective date prior to February 21, 2012 for the grant of service connection for CAD is remanded.

2. Entitlement to an effective date prior to February 21, 2013 for the grant of an increased rating to 20 percent disabled for peripheral neuropathy of the right lower extremity is remanded.

3. Entitlement to an effective date prior to February 21, 2013 for the grant of an increased rating to 20 percent disabled for peripheral neuropathy of the left lower extremity is remanded.

4. Entitlement to an effective date prior to March 21, 2007 for the grant of service connection for type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy is remanded.

5. Entitlement to an effective date prior to May 31, 2016 for the grant of service connection for left eye diabetic retinopathy (as an additional noncompensable disability rating associated with the Veteran’s service-connected type II diabetes mellitus) is remanded.

Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below.

In December 2016, the Veteran filed three Notice of Disagreement (NOD) forms (VA Form 21-0958) regarding the January 2016, June 2016, and August 2016 rating decisions.  In each NOD, the Veteran marked the “Effective Date of Award” box, with no explanation, for every issue on appeal (service connection and increased rating claims).

Regarding the above claims, the Veteran submitted a timely notice of disagreement with the January 2016, June 2016, and August 2016 rating decisions, but a statement of the case has yet to be issued.  A remand is required for the AOJ to issue a statement of the case.  38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  

The matters are REMANDED for the following action:

1. Send the Veteran and his representative a statement of the case (SOC) that addresses the issues of entitlement to an effective date prior to February 21, 2012 for the grant of service connection for CAD; entitlement to an effective date prior to February 21, 2013 for the grant of an increased rating to 20 percent disabled for peripheral neuropathy of the right lower extremity; entitlement to an effective date prior to February 21, 2013 for the grant of an increased rating to 20 percent disabled for peripheral neuropathy of the left lower extremity; entitlement to an effective date prior to March 21, 2007 for the grant of service connection for type II diabetes mellitus with erectile dysfunction and left eye diabetic retinopathy; entitlement to an effective date prior to May 31, 2016 for the grant of service connection for left eye diabetic retinopathy (as an additional noncompensable disability rating associated with the Veteran’s service-connected type II diabetes mellitus). 

2. If, and ONLY if, the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration.

 

 

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	G. Deemer, 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.