Citation Nr: 21025679 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-42 242 DATE: April 28, 2021 ORDER Entitlement to a disability rating higher than 10 percent for service-connected atrial fibrillation is denied. Entitlement to a disability rating higher than 10 percent for service-connected hypertension is denied. REMANDED Entitlement to a disability rating higher than 20 percent for service-connected degenerative disc disease (DDD) of the lumbosacral spine, and herniated disc at L5-S1, is remanded. Entitlement to a disability rating higher than 20 percent prior to May 1, 2019, and a rating higher than 30 percent as of that date, other than during periods of convalescence, for service-connected right shoulder arthroplasty, is remanded. Entitlement to a disability rating higher than 20 percent, other than during a convalescent period, for service-connected left shoulder debridement of superior labral tear mid-rotator cuff tendonitis, status post arthroscopy, is remanded. Entitlement to a disability rating higher than 10 percent prior to October 1, 2021, and a rating higher than 30 percent as of that date, other than during a convalescent period, for service-connected right knee replacement, is remanded. Entitlement to a disability rating higher than 10 percent for service-connected status post left knee anterior cruciate ligament (ACL) reconstruction is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran has not been shown to have more than four episodes of atrial fibrillation per year, as documented by an ECG or a Holter monitor. 2. Throughout the period on appeal, the Veteran’s hypertension has not been manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more at any point. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for service-connected atrial fibrillation have not been met. 38 U.S.C. §§ 1155, 5017; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7010. 2. The criteria for a disability rating higher than 10 percent for service-connected hypertension have not been. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, DC 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1987 to February 1989, from November 1993 to March 1999, from March 2001 to October 2001, from November 2001 to January 2002, from March 2002 to September 2002, from July 2003 to May 2004, and from December 2005 to December 2010. The current appeal before the Board of Veterans’ Appeals (Board) arose from a November 2016 rating action in which a Department of Veterans Affairs (VA) Regional Office (RO) continued 20 percent ratings for service-connected lumbosacral spine and bilateral shoulder disabilities; continued 10 percent ratings for bilateral knee disabilities, atrial fibrillation, and hypertension; and denied a TDIU. During the pendency of the Veteran’s appeal, in a May 2018 rating decision, the AOJ increased his disability rating for the right shoulder disability to 30 percent, effective May 1, 2019, after a period of convalescence. In January 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. The Board remanded this appeal to the Agency of Original Jurisdiction (AOJ) for further development in July 2020. In a September 2020 rating decision, the AOJ increased the disability rating for the right knee disability to 30 percent, effective October 1, 2021, also after a period of convalescence. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it is denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Atrial Fibrillation The Veteran’s atrial fibrillation has been rated under the criteria for supraventricular arrhythmias, pursuant to DC 7010. Diagnostic Code 7010 provides that a 30 percent rating is warranted for paroxysmal atrial fibrillation (PAF), or other supraventricular tachycardia (ST), with more than four episodes per year documented by ECG or Holter monitor. A 10 percent rating is warranted for permanent atrial fibrillation (lone atrial fibrillation), or for one to four episodes per year of PAF or other ST documented by ECG or Holter monitor. 38 C.F.R. § 4.104, DC 7010. A VA opinion obtained during the appeal period in June 2015 indicates that the Veteran had had zero episodes of atrial fibrillation during the prior 12-month period. The Veteran was later afforded a VA heart conditions examination in November 2016, where he reported not having any further problems with his atrial fibrillation sine the prior examination. The examiner noted that a December 2015 VA cardiology treatment report indicated that findings were unremarkable and that the Veteran’s paroxysmal atrial fibrillation had resolved. The Veteran was recommended to continue with his medication regimen. The examiner specifically noted that the Veteran had had zero episodes of atrial fibrillation during the prior 12-month period. The Veteran’s VA treatment records note that, historically, he has had two episodes of paroxysmal atrial fibrillation. The first occurred in 2006, when he underwent direct current synchronized cardioversion back to normal sinus rhythm; and the second was in 2011, at which time he was hospitalized for 4-5 days and then chemically converted back to normal sinus rhythm. During a January 2018 VA cardiology consultation, he indicated that he believed he went into atrial fibrillation for a few minutes one to two times per month, when he noticed palpitations, but reported that he was otherwise asymptomatic. The Veteran was most recently afforded a VA examination in September 2020. At that time, the Veteran clarified that with respect to his reported palpitations, he noticed two to three episodes per months where he would feel that he had a fast heartbeat and some diaphoresis, without other associated symptoms, lasting between five to 10 minutes, but that the symptoms would self-resolve. He reported that recent ECGs have been without atrial fibrillation. He noted that he had limited mobility due to multiple joint pains, but that he felt that he would be able to walk one block. He denied symptoms of dyspnea, presyncope, or syncope. On examination, the Veteran was noted ot have had zero episodes of atrial fibrillation during the prior 12-month period. The examiner further noted that all ECGs dated back to 2009 showed normal sinus rhythm. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the evidence fails to show that the Veteran is entitled to a disability rating higher than 10 percent for service-connected atrial fibrillation. The evidence clearly shows that the Veteran has not had more than four episodes of atrial fibrillation per year, as documented by ECG or a Holter monitor, as is required to qualify for a higher 30 percent disability rating. Although the Board has fully considered the Veteran’s reports of having two to three episodes per month where he has felt palpitations, and experienced diaphoresis, he simply has not been documented as having arrythmia episodes more than four times per year with an ECG or Holter monitor. The Board can point to no other Diagnostic Code that would provide a basis for the assignment of a rating in excess of 10 percent for the Veteran’s atrial fibrillation, as the evidence does not reveal any heart disability other than the service-connected atrial fibrillation, and the symptomatology contemplated by other DCs pertaining to the heart is not raised by the medical record. Accordingly, for the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that the Veteran is entitled to a disability rating higher than 10 percent for atrial fibrillation. Thus, the benefit-of-the-doubt doctrine does not apply and the claim must be denied. Hypertension The Veteran’s service-connected hypertension is rated as 10 percent disabling under the criteria for hypertensive heart disease, pursuant to 38 C.F.R. § 4.104, DC 7101. Under this Diagnostic Code, a 10 percent evaluation is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent evaluation is warranted for diastolic pressure predominantly 120 or more. A 60 percent evaluation requires Diastolic pressure predominantly 130 or more. Id. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, DC 7101, Note 1. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mmHg or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mmHg or greater with a diastolic blood pressure of less than 90 mmHg. Id. The Veteran was afforded a VA examination to assess the severity of his hypertension in November 2016. The examiner noted that, since prior examination, the Veteran has had to have his blood pressure medications adjusted for elevated blood pressure. He was noted to currently use metoprolol. The examiner noted that the Veteran’s blood pressure had been stable since April 2016. Blood pressure readings were noted to be 138/89, and 135/87 in April 2016, and 135/87 during examination. VA treatment reports dated from August 2015 to September 2020 include multiple blood pressure readings. The highest reading was 175/106 recorded in April 2016. During the appeal period, the highest systolic reading other than this was 155 documented in July 2019, and the highest diastolic reading was 98 recorded in December 2018. All other documented diastolic and systolic blood pressure readings were lower than these numbers. The Veteran was afforded his most recent VA examination in September 2020. The Veteran reported that he monitored his blood pressure at home and that his average systolic reading was in the 130’s. The examiner noted the Veteran’s continuous use of medication, and the Veteran maintained that his medication had not been adjusted in the past several years. The Veteran’s documented blood pressure readings during the examination were 131/87, 122/87, and 129/85. There were no other pertinent findings during his examination. As the foregoing evidence illustrates, the Veteran has not been shown to have diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, at any point during the appeal period. The Board acknowledges that the Veteran has further indicated that his blood pressure is well-controlled on medication, with reported at home systolic readings averaging in the 130’s. Although the Veteran has used medication to control his blood pressure, the Board points out that Diagnostic Code 7101 contemplates the use of medication to control hypertension. Indeed, in McCarroll v. McDonald, 28 Vet. App. 267 (2016), the United States Court of Appeals for Veterans Claims held that the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of Diagnostic Code 7101 contemplates the effects of medications. Accordingly, for the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that the Veteran is entitled to a disability rating higher than 10 percent for his service-connected hypertension. Thus, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. REASONS FOR REMAND Lumbosacral Spine, Bilateral Knee, and Bilateral Shoulder Disabilities Pursuant to the Board’s July 2020 remand, the Veteran was afforded new VA examinations for his service-connected lumbosacral spine, bilateral knee, and bilateral shoulder disabilities in September 2020. The examination findings, however, were not adequate to properly adjudicate these claims. Initially, the Board observes that the clinical findings obtained on examination of the Veteran’s lumbosacral spine, and bilateral knees and shoulders do not comport with requirements of 38 C.F.R. § 3.159, as discussed in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the reports do not include joint testing on both active and passive motion, and in weight-bearing and nonweight-bearing. Rather, in the respective reports, the examiner indicated that Correia was not applicable as the claimed conditions involved the spine, both knees, and both shoulders. There is no clear indication as to why the examiner believed that Correia findings were not applicable. Additionally, the Board observes that the examination findings with respect to the Veteran’s knees and shoulders appear to be inconsistent with evidence of record. In this regard, in the bilateral knee examination report, the examiner equivocally noted that there was no pain noted on examination, but then indicated that the Veteran had pain on palpation of the right knee joint. Medical evidence of record indicates that the Veteran has had long-standing knee pain. With respect to both shoulders, in the prior November 2016 VA examination report, the examiner noted that the Veteran had bilateral shoulder pain that caused functional loss. The Veteran’s recent VA treatment records point to significant, ongoing shoulder pain. Nonetheless, in the September 2020 VA examination report, the examiner indicated that the Veteran’s shoulder pain did not result in functional limitation in either joint. Clarification is required. Further, in the September 2020 VA examination report of the Veteran’s knees, the examiner noted that the Veteran used a cane regularly as a normal mode of locomotion, following his right knee total knee replacement. Given his history of surgical treatment of his bilateral knees, and the use of an assistive device, further examination is warranted to ascertain whether he suffers from any condition analogous to a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing instability, or a condition involving the patellofemoral complex with recurrent instability, which requires an assistive device, whether or not prescribed by a medical provider, in accordance with amended regulations for evaluating musculoskeletal disabilities that went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). TDIU The matter of entitlement to a TDIU is inextricably intertwined with the issues remanded herein. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a veteran’s claim for the second issue). Thus, consideration of entitlement to a TDIU must be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris, 1 Vet. App. at 183 (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Accordingly, the matters are hereby REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to determine adequately the current severity of his service-connected lumbosacral spine, bilateral knee, and bilateral shoulder disabilities. The entire claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating each disability under the pertinent rating criteria. The examiner should specifically test the range of motion and pain in the Veteran’s lumbosacral spine, both knees, and both shoulders in active and passive motion, and in weight-bearing and non-weight bearing (with results expressed in degrees). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. The examiner must attempt to elicit information regarding the severity, frequency, duration, and characteristics of reported flare-ups of each of the service-connected joint disabilities, and the degree of functional loss during flare-ups. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use over time, due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion, must also be noted. The examiner must offer opinions as to whether there would be additional limits on functional ability during reported flare-ups involving each joint. All losses of function due to problems such as pain should be equated to additional degrees of limitation in range of motion beyond that shown clinically. Where the Veteran has undergone surgical treatment of his knee joints, and has reportedly required the use of a cane since his total knee arthroplasty, the examiner must specifically ascertain whether the Veteran suffers from a condition analogous to a sprain, incomplete ligament tear or complete ligament tear (whether repaired, unrepaired, or failed repair) of either knee causing instability, or a condition involving the patellofemoral complex resulting in instability, which requires use of an assistive device. The examiner should also describe whether or not any assistive device was prescribed by a medical provider. The examiner should further determine whether there are chronic knee replacement residuals consisting of severe painful motion or weakness. A clear explanation for all opinions expressed would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide a requested opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The (CONTINUED ON NEXT PAGE) Veteran also is advised that he has the right to submit additional evidence and argument with respect to these matters. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Wilson, 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.