Citation Nr: 21026010 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-55 406 DATE: April 29, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to July 23, 2014 for coronary artery disease is denied. Entitlement to a rating in excess of 60 percent from July 23, 2014 for coronary artery disease is denied. REMANDED Entitlement to service connection for right side facial paralysis, to include as due to service-connected disease or injury is remanded. Entitlement to service connection for left side facial paralysis, to include as due to service-connected disease or injury is remanded. Entitlement to service connection for erectile dysfunction, to include as due to service-connected disease or injury is remanded. Entitlement to service connection for a dental disability, to include as due to service-connected disease or injury is remanded. Entitlement to total disability due to individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. Prior to July 23, 2014 the Veteran’s coronary artery disease (CAD) was characterized by continuous medication; the evidence did not show 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. 2. At no time during the pendency of the appeal did the Veteran’s CAD result in chronic congestive heart failure (CHF), a workload of 3 metabolic equivalents (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. CONCLUSIONS OF LAW 1. Prior to July 23, 2014, the criteria for an initial rating in excess of 10 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2020). 2. The criteria for a rating in excess of 60 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1967 to June 1969 with service in Korea. These matters come before the Board of Veterans’ Appeals (Board) from October 2014 and June 2015 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified by videoconference at a Board hearing before the undersigned Veterans Law Judge in November 2019; a transcript is associated with the claims file. In January 2020, the Board remanded these issues to the RO for additional development. With respect to the issue of entitlement to higher ratings for CAD, there has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). As explained in more detail below, additional development is needed for the Veteran’s entitlement to service connection claims. Pursuant to the January 2020 Board remand, in July 2020 and December 2020 correspondence the AOJ attempted to obtain the Veteran’s private heart treatment records and associate them with the claims file. The Veteran failed to respond. The duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the Board will proceed with adjudication with the evidence of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran’s disability, 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. The Veteran contends that he is entitled to higher ratings for his CAD. The Veteran’s CAD was evaluated as 10 percent disabling prior to July 23, 2014, and 60 percent disabling thereafter pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. Diagnostic Code 7005 provides for a 10 percent evaluation for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. A note prior to the Diagnostic Code explains that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). 1. Entitlement to an initial rating in excess of 10 percent prior to July 23, 2014 for coronary artery disease Correspondence from a private healthcare provider reflects that in September 2001 the Veteran presented with symptoms of a heart attack and he was taken to surgery for a stent. In February 2009, a second stent was placed. See May 2015 correspondence. The Veteran filed a claim for service connection for CAD in May 2011. For this period on appeal, there are no other relevant treatment records in the claims file. As mentioned above, following the January 2020 Board remand, the agency of original jurisdiction (AOJ) attempted to obtain the Veteran’s private treatment records twice, and the Veteran never responded. Those attempts to retrieve relevant records were in addition to June 2011 AOJ correspondence which asked the Veteran to submit any treatment records that were pertinent to his claim. Because the Veteran failed to respond, there is very little evidence regarding his heart condition during this time period. Based on the evidence of record, a rating in excess of 10 percent is not warranted prior to July 23, 2014. There is no evidence that the Veteran had a workload of less than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 2. Entitlement to a rating in excess of 60 percent from July 23, 2014 for coronary artery disease In July 2014, the Veteran presented with shortness of breath, chest pain and decreased stamina and two stents were placed. Correspondence from a private healthcare provider reflects that another attempt to place stents was made in August 2014, but the Veteran’s vessels were too small. The private physician stated that the Veteran’s condition was relatively stable. See May 2015 correspondence. The Veteran reported chest tightness during moderate activity during July 2015 VA treatment. During December 2015 VA treatment, the Veteran reported that he forgot to take his medication and experienced shortness of breath when walking from the parking lot to the medical facility. His blood pressure returned to normal and he told the treating physician that he had just had a normal EKG. The Veteran denied shortness of breath or chest pain during December 2015 VA treatment. The Veteran denied shortness of breath during VA treatment in May 2016, July 2016, December 2016, January 2017 and March 2017. The Veteran attended a VA examination in March 2017. He reported taking continuous medication and experiencing chest discomfort when using the stairs. The examiner determined that the Veteran did not have congestive heart failure, cardiac arrhythmia, heart valve complications, infectious heart conditions, or pericardial adhesions. His heart rate was 56 and he had a normal rhythm. There was no evidence of cardiac hypertrophy. The Veteran had a left ventricular ejection fraction of 45 percent, and an exercise test was not performed. An interview based METs test revealed a workload of greater than 3 METs but not greater than 5 METs that resulted in dyspnea and angina. The examiner determined that the Veteran’s CAD would prevent him from physically demanding forms of employment because he would be unable to lift, push or pull. The Veteran denied shortness of breath during August 2017 VA treatment. He exhibited unlabored breathing and denied shortness of breath during January 2018 VA treatment. The Veteran denied dyspnea and chest pain during April 2019 VA treatment, and his walking capacity was described as ok. During November 2019 VA treatment, the Veteran denied dyspnea and chest pain. The Veteran denied dyspnea, chest pain, and syncope during February 2020 VA treatment, and he exhibited non-labored breathing. June 2020 VA treatment records reveal that the Veteran reported periodic episodes of chest discomfort when climbing stairs. Pain subsided without intervention. He stated that he had not sought cardiac medical care in two years. The Veteran denied chest pain during November 2020 VA treatment. November 2020 VA treatment refers to a private September 2020 stress test which revealed a negative EKG portion of an exercise stress test with respect to EKG changes, no significant arrhythmias, and chest pain was denied during exertion. In order for the Veteran to receive a rating in excess of 60 percent, the evidence must demonstrate that his service-connected heart disability results in chronic CHF, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of less than 30 percent. The medical evidence, to include the VA examination report dated in March 2017, does not demonstrate any findings of CHF. Additionally, such records reflect LVEF of no less than 45 percent. Further, the medical evidence of record does not demonstrate a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope. In this respect, the Board acknowledges that the medical records show exercise stress tests were unable to be performed. Nevertheless, the clinician performing the March 2017 VA examination provided competent estimations on the basis of the Veteran’s reports of his symptoms attributable to his heart disability. Specifically, the March 2017 VA examiner found that, based on the Veteran’s responses, the lowest level of activity at which he developed dyspnea and angina was between 3 and 5 METs. In sum, the probative evidence of record does not reflect chronic CHF, a workload of 3 METs or less, or LVEF less than 30 percent at any time during the pendency of the appeal. Consequently, a rating in excess of 60 percent for the Veteran’s CAD pursuant to Diagnostic Code 7005 is not warranted. REASONS FOR REMAND 3. Entitlement to service connection for right side facial paralysis, to include as due to service-connected disease or injury 4. Entitlement to service connection for left side facial paralysis, to include as due to service-connected disease or injury 5. Entitlement to service connection for a dental disability, to include as due to service-connected disease or injury The Veteran contends that his right and left side facial paralysis and dental conditions are due to his service-connected hepatitis C. April 2015 private medical correspondence from Dr. A.J. reflects that the Veteran’s private doctor reported first treating the Veteran for facial paralysis in December 2001. The Veteran reported taking Peginterferon to treat his hepatitis C. The private doctor included an article regarding a potential relationship between that medication and the development of Bell’s palsy. The private doctor also stated that the Veteran’s facial paralysis produced pocketing of food in the area between the gums and cheeks that resulted in tooth infections and tooth decay, leading to the loss of his upper teeth. The private correspondence reveals outstanding private treatment records. The Board recognizes that the Veteran has failed to respond to previous attempts to obtain private treatment records, however, because these issues are being remanded, an attempt to obtain relevant treatments should be again undertaken. In an April 2015 letter, a private dentist, Dr. M.P., noted that she had treated the Veteran for periodontal disease for 30 years and ultimately underwent bone grafts and dental implants. The dentist referred to similar problems with other patients infected with hepatitis C who had been treated with Peg-Interferon and ribavirin and had developed dry mouth leading to bacteria formation, gingivitis, periodontitis and tooth loss. In August 2020, a VA examiner determined that the Veteran’s dental conditions were less likely than not due to his hepatitis C because the medications used to treat the Veteran’s hepatitis C very rarely caused mouth dryness. In November 2020, a VA examiner determined that the Veteran’s facial paralysis was less likely than not due to his hepatitis C because the hepatitis C had been successfully treated in 2006. In January 2021 correspondence, the Veteran, a retired obstetrician-gynecologist, stated that the medication he took to treat his hepatitis C impaired his immune system at the bone marrow, making it easier for HVC to invade his seventh nerve, which caused Bell’s palsy. The correspondence appears incomplete, as it is two pages in length, and the end of the second page appears to continue as it ends with, “[m]y log and.” An attempt to obtain the entire letter should be made on remand. Furthermore, the August 2020 and November 2020 VA opinions do not address all of the Veteran’s contentions and theories of entitlement. The Veteran appeared to exhibit facial paralysis as early as 2001, and his hepatitis C infection was not successfully treated until 2007. Accordingly, an additional opinion is necessary. There is no VA opinion of record regarding whether the Veteran’s Bell’s palsy caused his dental conditions. Because a decision on the remanded issues of entitlement to service connection for right and left side facial paralysis could significantly impact a decision on the issue of entitlement to service connection for a dental condition, the issues are inextricably intertwined, and a remand is required. 6. Entitlement to service connection for erectile dysfunction, to include as due to service-connected disease or injury The Veteran contends that he is entitled to service connection for erectile dysfunction, as due to his service-connected hepatitis C or coronary artery disease. In May 2015 correspondence, a private physician noted that erectile dysfunction appeared to be related to his coronary artery disease, in that it has a similar basic endothelial dysfunction mechanism. He explained that the ischemia caused by atherosclerosis can affect the brain and other organs. It does not appear that the Veteran’s contentions have been assessed by a VA examiner. Accordingly, an opinion is needed on remand. 7. Entitlement to total disability due to individual unemployability (TDIU) due to service-connected disabilities April 2015 Social Security Administration (SSA) records reflect that the Veteran attributed his inability to work to Bell’s palsy and to continue his medical practice because of hepatitis C infection. Because a decision on the remanded issues of entitlement to service connection for right and left side facial paralysis could significantly impact a decision on the issue of entitlement to a TDIU rating, the issues are inextricably intertwined, and a remand is required. The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private providers and associate them with the claims file. The Veteran should identify all outstanding records related to all of the claims on appeal, including records from Dr. J. 2. Obtain any outstanding VA treatment records and associate with the claims file. 3. Ask the Veteran to resubmit his January 2021 letter and associate with the claims file. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right and left side facial paralysis and dental disability manifesting as gum disease, bone and tooth loss is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected disability, to include hepatitis C and the medications used for its treatment. The Veteran’s various theories, letters from Dr. A.J. and Dr. M.P., and his supporting articles should be addressed, as well as the private medical statements of record. 5. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s erectile dysfunction is at least as likely as not proximately due to or aggravated beyond its natural progression by service-connected disability, to include coronary artery disease. (continued next page) 6. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claim, to include entitlement to service connection for a dental disability, and entitlement to a TDIU rating. If any of the benefits sought are not granted in full, the AOJ should furnish the Veteran and his representative with an SSOC and afford an opportunity to respond. The claims file should then be returned to the Board for further appellate review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.