Citation Nr: 22015301 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 18-18 565 DATE: March 17, 2022 ORDER Entitlement to a rating in excess of 10 percent for status post coronary artery bypass graft surgery (CABG), excluding periods of total disability, is denied. REMANDED Entitlement to service connection for a kidney disability is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Excluding periods of total disability prior to April 1, 2015, and as of May 7, 2019, a heart disability manifested with a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs resulting in dyspnea and fatigue. The disability did not manifest with a workload of 5.1-7.0 METs resulting in heart failure symptoms; or evidence by echocardiogram or equivalent nor 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. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for status post coronary artery bypass graft surgery (CABG), excluding periods of total disability, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.104, Diagnostic Code 7017. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida. In April 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. During the course of this appeal, a July 2021 rating decision granted an earlier effective date of December 1, 2014, for service connection for coronary artery bypass graft surgery (CABG). December 1, 2014, is the date the Veteran was first confirmed to be diagnosed with the disability. Therefore, the claim of entitlement to an earlier effective date for CABG, previously the subject of the appeal, has been resolved in the Veteran's favor, and there is no longer a case in controversy for appellate consideration as to that claim. Therefore, that claim is no longer on appeal. 1. Entitlement to a rating in excess of 10 percent for status post coronary artery bypass graft surgery (CABG), excluding periods of total disability. Disability ratings are based on VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's heart disability has been rated under 38 C.F.R. § 4.104, Diagnostic Code 7017. Diagnostic Code 7017 assesses coronary bypass surgery. VA revised the regulation that pertains to the rating of specified cardiovascular disorders, those rated under Codes 7000 through 7007, 7011, and 7015 through 7020, effective November 14, 2021. 38 C.F.R. § 4.104. Prior to November 14, 2021, pursuant Diagnostic Code 7005, a 10 percent rating was warranted when documented CAD produces dyspnea, fatigue, angina, dizziness, or syncope with a workload of greater than 7 METs but not greater than 10 METs, or when continuous medication is required. A 30 percent rating was warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating was warranted for more than one episode of acute congestive heart failure in the past year, or; when a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating was warranted for chronic congestive heart failure, or; 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. Under Diagnostic Code 7017, coronary bypass surgery is rated under the same criteria as CAD (Diagnostic Code 7005), except that Diagnostic Code 7017 allows for a 100 percent disability rating for three months following hospital admission for surgery. After the three months, a veteran is rated with the identical criteria as Diagnostic Code 7005. Pursuant to the revised regulations effective November 14, 2021, Diagnostic Code 7017 for rating coronary bypass surgery, a Veteran is entitled to a 100 percent rating for three months following hospital admission for bypass surgery. After those three months, a Veteran's heart condition must be rated using the General Rating Formula. 38 C.F.R. § 4.104. Under the revised General Rating Formula for Diseases of the Heart, a 10 percent rating is warranted where a workload of 7.1-10.0 METs results in heart failure symptoms; or continuous medication is required for control. A 30 percent rating is warranted where a workload of 5.1-7.0 METs resulting in heart failure symptoms; or evidence by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging). A 60 percent rating is warranted when a workload of 3.1-50 METs resulting in heart failure symptoms. A 100 percent rating is warranted when a workload of 3.0 METs or less results in heart failure symptoms. 38 C.F.R. § 4.104. Given the dates involved in this case (i.e., 2016 and earlier), however, these revised criteria are not directly applicable to the case at hand. One MET (metabolic equivalent) 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 breathlessness, 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, a medical examiner may estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in those symptoms. 38 C.F.R. § 4.104, Note (2). Heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. The current increased rating claim stems from the initial grant of service connection for a heart disability. The service-connected coronary artery bypass graft surgery is currently assigned a 100 percent rating effective December 1, 2014; a 10 percent rating effective April 1, 2015; and a 100 percent rating effective May 8, 2019. The Veteran contends that he is entitled to a higher rating for coronary artery disease as a result of the current severity. A 100 percent rating is the maximum schedular rating available under Diagnostic Code 7017 under both the old and new rating criteria. Therefore, a rating in excess of 100 percent under Diagnostic Code 7017 cannot be assigned for the periods prior to April 1, 2015, or as of May 8, 2019. Therefore, the only period in question is from April 1, 2015, to May 7, 2019. A December 2014 echocardiogram showed normal left ventricular wall thickness, and normal systolic function. Estimated left ventricular ejection fraction was greater than 55 percent. At an April 2015 VA examination, the Veteran complained of getting short of breath easily and an inability to walk long distances. The Veteran was not found to have had a myocardial infarction, chronic heart failure, arrhythmia, heart valve conditions, infectious heart conditions, or pericardial adhesions. On examination, the Veteran's heart rhythm was normal and diagnostic testing did not show cardiac hypertrophy, or cardiac dilation. Interview based METs testing was greater than 7 to 10 METs, which was found to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging (6 miles per hour). At that level, the Veteran experienced dyspnea and fatigue. Having carefully reviewed the evidence of record, the Board finds that, from April 1, 2015, to May 7, 2019, the preponderance of the evidence is against the assignment of a rating for coronary artery disease with bypass surgery greater than 10 percent. The Board finds that the evidence of record does not more nearly approximate the criteria for the next higher rating. 38 C.F.R. § 4.7. From April 1, 2015, to May 7, 2019, the records show no evidence of congestive heart failure occurring. During that time period, the evidence does not show a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, nor is there evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The METs testing and estimation was greater than 7 METs. The evidence does not show left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. The ejection fraction was, at worst, greater than 55 percent. Therefore, the criteria for a higher rating of 30 percent are not met. The Board accepts that the Veteran is competent to report on his functional impairment that is detectable by his senses and experiences, such as difficulty walking, dyspnea, and fatigue. Laypersons are competent to report symptoms and events that they experience through their senses. 38 C.F.R. § 3.159 (a)(2); Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, the Board finds the Veteran's own reports of symptomatology to be credible. However, the schedular criteria for coronary artery disease with bypass surgery are predicated on medical findings and not subjective symptoms. The medical findings do not more nearly approximate the criteria for the next higher rating. The more probative evidence consists of that prepared by neutral skilled professionals, and that evidence demonstrates that the currently assigned rating is appropriate for the Veteran's coronary artery disease with bypass surgery. The Board finds that VA examination findings more persuasive because of the medical training of the examiner, who made a METs estimate based on interview of the Veteran, and thus considered the Veteran's reports of symptomatology. The Board has considered whether a higher rating is available under any other potentially applicable provision of the rating schedule. However, the Board finds that a higher rating is not warranted based on any other provision of the rating schedule, at any time, throughout the period of appeal. 38 C.F.R. § 4.104, Diagnostic Codes 7000-7019. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating for coronary artery disease with bypass surgery. Therefore, the claim for an increased rating must be denied. The Board finds that the evidence is not in relative equipoise and there is no reasonable doubt to resolve in favor of the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a kidney disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a kidney disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that a current kidney disability is secondary to his service- connected diabetes mellitus. VA has conceded herbicide agent exposure. An April 2015 VA examination diagnosed chronic kidney disease. The examiner opined that the Veteran's chronic kidney disease was less likely as not due to or aggravated by service-connected diabetes mellitus. The examiner explained that the Veteran's glucose control has been excellent. Since October 1997, most HgbA1C values have been less than 6.4 percent. In the setting of such tight glucose control, the examiner opined that it was less likely as not that Veteran's diabetes was responsible for the renal dysfunction. There had been no objective evidence for aggravation hypertension condition or kidney disease beyond the expected progression by diabetes mellitus. Renal function was noted to worsen at a rapid rate in 2013, less likely as not due to diabetic nephropathy. Diabetic nephropathy results in a gradual worsening of renal function. December 2013 nephrology consultation noted that the precipitous decline in renal function was atypical for diabetic kidney disease. The examiner stated that the longstanding proteinuria may be due to hypertensive nephropathy because of the history of hypertensive retinopathy. The examiner suspected that there may be some hemodynamic changes contributing to the rapid decline. Based upon the evidence, the examiner opined that it was less likely as not that current kidney disease was due to or aggravated by diabetes mellitus. The Board notes that VA has conceded herbicide agent exposure. However, to date, no examiner has addressed the claim for service connection for kidney disease on a direct basis in regard to already conceded exposure to herbicide agents in service. That is a pre-decisional duty to assist error. Because the Veteran has been diagnosed with a disability that may have been caused by service, the Board finds that a VA opinion to determine any relationship between the claimed kidney disabilities and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 2. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. 3. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. The Veteran seeks service connection for bilateral upper and lower extremity peripheral neuropathy secondary to diabetes mellitus. The Veteran is currently service-connected for diabetes mellitus. At a March 2015 VA examination, the Veteran was not found to have or have ever had diabetic peripheral neuropathy. However, the Board acknowledges that the medical evidence of record show the Veteran as being diagnosed with diabetic peripheral neuropathy. For example, July 2020 treatment records show the Veteran as being prescribed Nortriptyline for diabetic neuropathic foot pain. However, as the record currently stands, it is unclear which extremity or extremities have been associated with the diagnosed neuropathy. The Board finds that a VA examination is necessary to provide clarity and to properly diagnose the claimed neuropathic disability. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). Because the claimed disabilities may have been caused by service and/or a service-connected disability, the Board finds that a VA opinion to diagnose and determine any relationship between the claimed disabilities and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). 4. Entitlement to TDIU is remanded. Because a decision on the remanded issues of entitlement to service connection for a kidney disability and service connection for bilateral upper and lower peripheral neuropathy could significantly impact a decision on the issue of entitlement TDIU, the Board finds that the issues are inextricably intertwined. Because the kidney and neuropathy claims are being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider that TDIU claim prior to the determination of the other claims. Therefore, the adjudication of the TDIU claim must be deferred pending resolution of those claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Request the Veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who provided treatment for all claimed disabilities. After securing the necessary releases, attempt to obtain all copies of pertinent treatment records identified by the Veteran that are not currently of record. 2. Then, schedule the Veteran for a VA peripheral neuropathy examination to diagnose and determine the nature and etiology of any bilateral lower and upper extremity neuropathy. The examiner must review the claims file, including this Remand and the lay evidence of record and should indicate that review in the examination report. Exposure to herbicide agents during service in Vietnam is presumed. After reviewing the claims files, the examiner is asked to do the following: (a) Diagnose any neurologic disability of the bilateral upper and lower extremities and specifically state whether peripheral neuropathy is found in each extremity. (b). Opine whether it is at least as likely as not (50 percent or greater probability) that bilateral upper and lower peripheral neuropathy is etiologically related to active service or any event, disease, or injury during service, including whether the any peripheral neuropathy (1) began during active service, (2) is related to presumed herbicide agent exposure, (3) manifested within one year after separation from service, (4) was noted during service with continuity of the same symptomatology since service, (5) was proximately caused by the service-connected disabilities or treatment for any service-connected disabilities, to include diabetes mellitus and peripheral arterial disease, or (6) was aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for the service-connected disabilities, to include diabetes mellitus and peripheral arterial disease. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of a record of the claimed disability in service. The examiner is advised that the absence of a diagnosed condition from the list of disabilities which are presumed to be the result of exposure to herbicide agents is not a sufficient explanation for a negative opinion. 3. Schedule the Veteran for a VA examination, with a medical doctor who has not previously examined the Veteran, to determine the nature and etiology of any kidney disability. The examiner must review the claims file, including this Remand and the lay evidence of record and should indicate that review in the examination report. After reviewing the claims files, the examiner should diagnose all kidney disabilities found. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that each kidney disability found is etiologically related to active service or any event, disease, or injury during service, including whether any kidney disability, (1) began during active service or is related to any event, injury, or disease during service, (2) is related to conceded herbicide agent exposure in service, (3) manifested within one year after separation from service, (4) was noted during service with continuity of the same symptomatology since service, (5) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include coronary artery bypass graft surgery, diabetes mellitus, and peripheral arterial disease, or (6) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include coronary artery bypass graft surgery, diabetes mellitus, and peripheral arterial disease. A clearly stated rationale for each opinion offered should be provided and must not be based on the lack of an in-service record of the claimed disability. The expert is advised that the absence of a disability from the list of disabilities which are presumed to be the result of exposure to herbicide agents is not a sufficient explanation for a negative opinion regarding whether the disability was caused by exposure to herbicide agents in service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.