Citation Nr: 21042420 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-02 650 DATE: July 13, 2021 ORDER Entitlement to an earlier effective date for the grant of service connection for coronary artery disease with myocardial infarction prior to October 3, 2016, is denied. Entitlement to a rating in excess of 10 percent for coronary artery disease with myocardial infarction from January 1, 2017 through September 30, 2018, is denied. New and material evidence has been received to reopen a claim for service connection for bilateral peripheral neuropathy (also claimed as right and left lower), to include as due to Agent Orange exposure and the claim is reopened. Entitlement to service connection for bilateral peripheral neuropathy is granted. FINDINGS OF FACT 1. Prior to October 3, 2016, there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for coronary artery disease with myocardial infarction. 2. Between January 1, 2017 and September 30, 2018, metabolic equivalent (MET) testing shows the Veteran develops dyspnea at a workload of greater than 7 but not greater than 10 METs. MET testing shows the Veteran did not develop these symptoms at a workload of 7 METs or less, and there was no evidence of cardiac hypertrophy or dilation on electro-cardiogram, echocardiogram, or X-ray. 3. In a March 2015 rating decision, the Veteran's claims of entitlement to service connection for peripheral neuropathy denied. The VA did not receive an appeal of this decision or any new and material evidence within one year of notification of the decision, making the March 2015 rating decision final. 4. Additional evidence has been received which is not cumulative or redundant of the evidence of record at the time of the March 2015 rating decision and relates to unestablished facts necessary to substantiate the service connection claims on appeal. 5. Resolving reasonable doubt in the Veteran's favor, bilateral peripheral neuropathy is at least as likely as not related to in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than October 3, 2016, for the grant of service connection for coronary artery disease with myocardial infarction are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. From January 1, 2017 through September 30, 2018, the criteria for rating more than 10 percent for arteriosclerotic heart disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code (DC) 7005. 3. The March 2015 rating decision denying service connection for peripheral neuropathy is final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 4. New and material evidence had been received since March 2015 to reopen the claims of entitlement to service connection for peripheral neuropathy, and the claims are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for bilateral peripheral neuropathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. This decision addresses the Veteran's claim to reopen a claim for service connection for bilateral peripheral neuropathy. An additional appeal would be required if the Veteran disagrees with an assigned compensation level or an effective date of service connection for this issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). EARLIER EFFECTIVE DATE Entitlement to an earlier effective date for the grant of service connection for coronary artery disease with myocardial infarction prior to October 3, 2016, is denied. Generally, the effective date of an award of disability compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be 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. A claim is a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action that (1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim. 38 C.F.R. § 3.155(a). When determining the effective date of an award of compensation benefits, VA must review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the application is received within one year from such date. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). If the evidence reflects that the increase in severity first occurred more than one year before the date of the claim, 38 C.F.R. § 3.400(o)(2) does not apply, and the effective date is the date of the claim as under the general effective- date rules. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). On October 3, 2016, VA received a claim for entitlement to service connection for ischemic heart disease. In February 2017, the RO granted service connection for coronary artery disease with myocardial infarction associated with herbicide exposure is granted with a 100 percent evaluation, effective October 3, 2016, and an evaluation of 10 percent, effective January 1, 2017. In February 2017, the Veteran timely disagreed with these effective dates and, in January 2018, appealed to the Board. In October 2018, the RO increased the evaluation of coronary artery disease with myocardial infarction from 10 to 100 percent, effective October 1, 2018. On the March 2017 Notice of Disagreement, the Veteran stated that "the original claim was filed 3-3-15." On the March 2017 Appeal to the Board, the Veteran stated that "the claim was made on 3-15-15." This appears to be in error. At the February 25, 2021 Board hearing, the Veteran denied that that the claim was filed prior to October 2016. A review of the record showed that March 3, 2015, was actually the date of a rating decision denying the Veteran's claim for service connection for peripheral neuropathy (see below). There is no record evidence of a claim, informal claim, or expressed written intent to file a claim for service connection for ischemic heart disease, coronary artery disease with myocardial infarction, or any other heart condition prior to October 3, 2016. Generally, the effective date of an award of disability compensation 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. A review of the record indicates no filing made prior to October 3, 2016, that approximates the criteria of a formal or informal claim for ischemic heart disease, coronary artery disease with myocardial infarction, or any other heart condition. Therefore, the assignment of an effective date earlier than October 3, 2016, for service-connected ischemic heart disease is precluded, and the appeal as to an earlier effective date must be denied. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The claim is denied. INCREASED RATING Entitlement to an increased evaluation more than 10 percent for coronary artery disease with myocardial infarction from January 1, 2017 through September 30, 2018, is denied. On October 3, 2016, VA received a claim for entitlement to service connection for ischemic heart disease. In February 2017, the RO granted service connection for coronary artery disease with myocardial infarction associated with herbicide exposure is granted with a 100 percent evaluation, effective October 3, 2016, and an evaluation of 10 percent, effective January 1, 2017. In February 2017, the Veteran timely disagreed with this rating and, in January 2018, appealed to the Board. The Veteran contended entitlement to a higher rating (at least 50 percent) because the 10 percent rating effective from January 1, 2017, was not representative of the severity of the Veteran's heart disability. In October 2018, the RO increased the evaluation of coronary artery disease with myocardial infarction from 10 to 100 percent, effective October 1, 2018. However, an increased rating the period from January 1, 2017, to September 30, 2018, remains on appeal. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 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 the veteran's favor. 38 C.F.R. § 4.3. The Veteran's coronary artery disease with myocardial infarction was assigned a 10 percent evaluation from January 1, 2017, to September 30, 2018, under DC 7006, which pertains to myocardial infarction. Myocardial infarction is rated pursuant to 38 C.F.R. § 4.104, DC 7006. Under DC 7006, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where 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 dilation on electrocardiogram, echocardiogram, or X-ray. One metabolic equivalent (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. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination 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. Id. In November 2016, the Veteran underwent a VA examination. The VA examiner diagnosed acute, subacute, or old myocardial infarction and coronary artery disease. The Veteran reported a history of chest pain dating back to 2015. The Veteran reported undergoing a cardiac catherization after being taking to the ER for angina. Cardiac enzymes were consistent with a myocardial infarction. Due to stenosis of the mid left anterior descending artery, stenting was required in September 2016. The Veteran required continuous medication. Physical examination showed a heart rate of 60. The point of maximal impact was the fifth intercostal space. Heart sounds and peripheral pulses were "normal." There was "trace" lower extremity edema. Blood pressure was 152/80. September 2016 electrocardiogram was "normal." September 2016 coronary artery angiogram, however, was "abnormal," showing "mild to moderate" stenosis in left anterior descending artery with an ejection fraction of 52 percent. There was no evidence of cardiac hypertrophy or dilatation. November 2016 testing showed dyspnea with greater than 7 but fewer than 10 METs. The VA examiner found no functional impact on the Veteran's ability to work. In January 2017, the Veteran denied shortness of breath to a VA primary care physician. September 2018 VA transthoracic echocardiogram showed "normal" left ventricular size and ejection fraction (60 percent) and "normal" appearing mitral, aortic, and tricuspid valves with no significant Doppler flow abnormality. The Veteran is competent to report readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has found no reason to call into question the Veteran's credibility. At the February 2021 Board hearing, the Veteran testified to an ejection fraction of 52 percent during the period on appeal, which is consistent with the above medical evidence of record. Considering all relevant evidence of record, the Board finds the November 2016 VA examination report the best evidence for the severity of the Veteran's heart condition during the period on appeal. Nothing in the medical evidence of record or the Veteran's February 2021 testimony contradict any of the VA examination's findings. In February 2017 and January 2018, the Veteran disagreed with the then current 10 percent rating, but the RO later increased the rating to 100 percent in October 1, 2018. Accordingly, the Board concludes that the Veteran's coronary artery disease with myocardial infarction manifested in symptoms most closely matching a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea and requiring continuous medication throughout the appeal period. These findings correspond to the criteria for a 10 percent rating under DC 7006. A higher 30 percent rating under DC 7006 is not warranted unless METs testing shows the Veteran develops dyspnea, fatigue, angina, dizziness, or syncope at a workload greater than 5 METs but not greater than 7 METs, or; alternatively, evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. Between January 1, 2017, and September 30, 2018, the Veteran's coronary artery disease with myocardial infarction manifested in symptoms most closely matching a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea and requiring continuous medication throughout the appeal period. Thus, the Board concludes that the Veteran's coronary artery disease with myocardial infarction did not meet the criteria corresponding to a higher 30 percent rating during this period. The claim is denied. NEW AND MATERIAL EVIDENCE New and material evidence has been received to reopen a claim for service connection for bilateral peripheral neuropathy (also claimed as right and left lower), to include as due to Agent Orange exposure, and the claim is reopened. New and material evidence having been received, the petitions to reopen the claims of service connection for left and right shoulder disorders are granted. Once the agency makes a final decision, the agency may consider a claim on the merits only if it receives new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence is "new" if it was not previously submitted to agency decisionmakers. Evidence is "material" if, whether by itself or when considered with the record evidence from the prior final decision, it relates to an unestablished fact necessary to prove the claim. "New and material evidence" can be neither cumulative nor redundant of the prior final decision's evidence and must raise a reasonable possibility of proving the claim. 38 C.F.R. § 3.156(a). The credibility of new and material evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding evidence new and material. Evidence raises a reasonable possibility of proving the claim if it would trigger the agency's duty to provide an examination in deciding a claim that was not final. Shade v. Shinseki, 24 Vet. App. 110 (2010). The March 2015 rating decision denied the Veteran's claim for service connection for peripheral neuropathy because it did not first become manifest to a compensable degree within one year after last exposure to herbicides. At the time of that decision, the evidence of record included service treatment and military personnel records from March 1966 to January 1969, private treatment records from August 2010 to December 2011, and VA treatment record from May 2014 to January 2015. The evidence received since the March 2015 rating decision includes evidence related to establishing a nexus, or a causal relationship, between the Veteran's in-service herbicide agent exposure in the Republic of Vietnam and the current bilateral peripheral neuropathy. This evidence included private treatment records from December 2011 to July 2018, VA treatment records from May 2014 to March 2018, a private neurologist's statement from March 2021, and lay statements from the Veteran throughout the appeal period, including sworn testimony from February 2021. For purposes of determining if this evidence is new and material, the credibility of the testimony is assumed. This evidence is new and material because it relates to an unestablished fact that is necessary to prove the claim. The Veteran provided additional medical and lay evidence related to current peripheral neuropathy and its nexus to in-service herbicide agent exposure in the Republic of Vietnam. The claim is reopened. SERVICE CONNECTION Entitlement to service connection for bilateral peripheral neuropathy is granted. The Veteran contends bilateral peripheral neuropathy related to herbicide agents in the republic of Vietnam. The claim to reopen was received October 3, 2016. The Board concludes that the Veteran has a current disability that bilateral peripheral neuropathy is related to herbicide agent exposure during the Veteran's service in the Republic of Vietnam. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). July 2014 private treatment records show the Veteran has a current diagnosis of peripheral neuropathy. Thus, the question becomes whether the current disability is related to service. There are no medical opinions against the claim. The evidence in favor of the claim includes a March 2021 medical source statement from the Veteran's private neurologist. The private neurologist explained the Veteran is under the neurologist's care for a history of peripheral neuropathy and stated, "Evaluation has failed to find any other cause to his neuropathy. As you know, [the Veteran] served in the United States Military during the Vietnam War with a history of exposure to Agent Orange. There is a higher rate and association between the exposure and certain neurologic disorders including a toxic peripheral neuropathy." This opinion, in as far as in connects the Veteran's in-service exposure to herbicide agents in Vietnam to the current peripheral neuropathy, is consistent with other evidence of record. For example, the Veteran's military personnel records showed that the Veteran did indeed serve in the Republic of Vietnam from January 1968 to January 1969. The Veteran was recommended for an Army Commendation Medal for outstanding performance during this tour of duty. At the February 2021 Board hearing, the Veteran testified to being stationed in the field, including in Danang for six months, and being "right adjacent next door to . . . another compound where they stored a lot of the Agent Orange and loaded it into helicopters. Which they took out and then sprayed it all over the place." In February 2017, the RO conceded the Veteran's exposure to herbicide agents in granting service connection for coronary artery disease with myocardial infarction. The record contains private treatment notes from as early as December 2011 for numb toes. The Veteran admitted to not noticing the feet numbness until 2008, but the Veteran's testified that a treating neurologist had explained that it "sometimes takes decades to metastasize to the point where it's really noticeable." In January 2018, the Veteran's primary care physician noted that the Veteran's numbness had progressed from numbness to pain and that the Veteran did not have diabetes mellitus. In July 2018, the Veteran had a private electromyogram and nerve conduction studies. The Veteran's private neurologist concluded that "This is an abnormal electrodiagnostic study. There is electrodiagnostic evidence of a sensory motor axonopathy which may be related to the patient's prior exposure to the neurotoxic Agent Orange." Upon review of the record, the Board finds the evidence to at least be at least in even as to whether the Veteran's current peripheral neuropathy is related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral peripheral neuropathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is granted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.