Citation Nr: 22017795 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 17-63 403 DATE: March 26, 2022 ORDER Entitlement to service connection for type 2 diabetes mellitus (DMII), due to herbicide agent exposure, is granted. Entitlement to an initial 60 percent rating for ischemic coronary artery disease (CAD) is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam, and the evidence is at least evenly balanced as to whether he has a diagnosis of DMII. 2. The evidence is at least evenly balanced as to whether the Veteran's CAD symptomatology more nearly approximates a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor the Veteran, the criteria for entitlement to service connection for DMII have been met. 38 U.S.C. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for an initial 60 percent rating for service connected CAD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.21, 4.104, diagnostic code (DC) 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1964 to March 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina which, among one other thing, granted service connection for CAD, evaluating it as 30 percent disabling from October 31, 2012, and denied service connection for DMII. In March 2015, the Veteran filed his notice of disagreement with the denial of service connection for DMII, and in June 2015 filed his notice of disagreement with the 30 percent rating for his CAD. The Veteran was issued a statement of the case in November 2017, and in September 2017 perfected his appeal to the Board. On March 14, 2022, the Veteran appeared at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but is not necessary for a decision on the claim. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to an herbicide agent, such as Agent Orange, during active service, service connection will be presumed for certain diseases, including DMII, which are listed at 38 C.F.R. § 3.309 (e), if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a) (6) (iii), 3.307(e). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a veteran who, during active military, navel, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 38 U.S.C. § 1116 (f). The Veteran's service treatment records do not reflect treatment for DMII, or symptomatology associated with DMII, and his March 1966 medical examination report upon discharge is normal. The Veteran's military personnel records reflect service in the Republic of Vietnam from August 1965 to March 1966. A March 2013 disability benefits questionnaire (DBQ) indicates that the Veteran has a diagnosis of DMII for which he was prescribed oral hypoglycemic agents, and was managed by a restricted diet. The examining physician noted that the Veteran had an HgA1C greater than 6 percent dating back to January 2008. A May 2014 VA examination report indicated that the Veteran did not have a diagnosis of DMII, but had impaired fasting glucose for which he was prescribed an oral hypoglycemic agent. While the examining physician noted that the Veteran reported a diagnosis of DMII from about 2008, the physician reported that he was unable to establish a diagnosis of DMII at the time of the examination. A January 2015 DBQ reflects that the Veteran has a diagnosis of DMII which is managed by a restricted diet, and with prescribed medication. The Veteran also required avoidance of strenuous activities to avoid hypoglycemic episodes. The physician noted an HgA1C of 6.6 from June 25, 2010, and an HgA1C of 6.0 from December 22, 2014, with the physician reporting that control of DMII was maintained due to aggressive treatment due to his CAD. The Veteran's physician reported that the Veteran has been under her care since 2003 and that lab work from January 2003 demonstrated impaired fasting glucose, with a fasting blood glucose of 114. The physician noted that progression to DMII was demonstrated on lab results in 2008, and that the Veteran's HgA1C has been controlled by diet and medications. The physician stated that without medication the Veteran's HgA1C would be higher. A November 2017 VA examination note indicates that there is no official diagnosis of DMII. The Veteran reported using metformin for years, and seeing a doctor for lab work every 6 months. He denied any hospitalizations for DMII, and stated that he did not check his blood sugar at home. The examiner opined that it is less likely than not (less than a 50 percent probability) that the Veteran has a confirmed diagnosis of DMI after a review of the Veteran's private and VA medical record. The examiner noted that the previous diagnoses of DMII were not supported by objective evidence documented in the laboratory values of the Veteran, and that a review of laboratory results does not meet the VA or American Diabetes Association (ADA) criteria to diagnose DMII. In August 2020 private treatment records, the Veteran's primary physician reported that the Veteran's laboratory work has demonstrated an elevated fasting blood sugar dating back to at least January 2003, and that it was frequently greater than 100 between 2003 and 2010. She also noted an HgA1C of 6.6 percent in June 2010 which, according to the ADA, meets the criteria for a diagnosis of DMII. The physician stated that in light of the Veteran's CAD, aggressive management of his DMII was considered crucial, so his diet was controlled, and he was started on metformin for improved management which he continues to this day. She stated that the Veteran should not be considered nondiabetic because his providers have been proactive in an effort to prevent long-term complications associated with DMII. An August 2020 VA examination report reflects that the examining physician opined that the Veteran did not have evidence of DMII based on the current available information, as his most recent HgA1C is 5.4, with a blood sugar of 92, which are both normal. The physician stated that a blood sugar of 114 is not diagnostic of DMII as the Veteran may have glucose intolerance. The Board finds that the evidence is at least evenly balanced as to whether the Veteran has a diagnosis of DMII which is presumptively due to in-service exposure to an herbicide agent. The Veteran's personnel records reflect service in the Republic of Vietnam, thus exposure to an herbicide agent is presumed, and the dispositive issue is whether he has a current diagnosis of DMII. The March 2013 DBQ, January 2015 DBQ, and August 2020 private treatment records indicate that the Veteran has a diagnosis of DMII. While the May 2014, November 2017, and August 2020 examination reports reflect no diagnosis of DMII, the examiners based their findings on the fact that the Veteran's more recent HgA1C levels were normal. However, the Veteran's primary physician explained in the August 2020 private treatment records that the Veteran started with aggressive treatment once his HgA1C levels met the criteria for DMII. Therefore, it is reasonable to conclude that the Veteran has a current diagnosis of DMII even though his continuous treatment has allowed for the lower HgA1C levels since diagnosis. Thus, the evidence of record is at least evenly balanced as to whether the Veteran has a current diagnosis of DMII, and as previously noted, he is presumed to have been exposed to an herbicide agent during service in Vietnam. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for DMII, due to exposure to an herbicide agent, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). CAD The Veteran's CAD is currently rated 30 percent disabling under DC 7005. DC 7005 evaluates arteriosclerotic heart disease, including CAD, and assigns a 30 percent rating when workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned for more than one episode of acute congestive heart failure in the past year, or; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or; when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; for left ventricular dysfunction with an ejection fraction of less than 30 percent. One MET 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). A February 2013 DBQ reflects that the Veteran's CAD treatment plan included taking continuous medication, and the examiner noted that the Veteran did not have congestive heart failure (CHF). There was evidence of cardiac hypertrophy noted, and left ventricular ejection fraction (LVEF) was 55 percent. A May 2014 VA examination report indicates that the Veteran's CAD requires continuous medication, and that the Veteran underwent percutaneous coronary intervention (PCI), as well as coronary bypass surgery. The examiner noted that the Veteran did not have CHF or suffer a myocardial infarction (MI). The Veteran denied experiencing symptoms with any level of physical activity, and the examination report reflects that the Veteran's CAD does not impact his ability to work. A November 2017 VA examination note indicates that the Veteran's CAD required continuous medication, but that the Veteran had not had an MI, or CHF. The examiner indicated that the Veteran had had intermittent atrial fibrillation with 1 to 4 episodes in the past 12 months. The examiner also noted constant sick sinus syndrome. The examination note indicated that the Veteran underwent coronary bypass surgery, PCI, and had an implanted cardiac pacemaker. The Veteran's heart rate was 72, with a regular rhythm, but there was evidence of cardiac hypertrophy. An interview based METs test was performed with the Veteran denying experiencing symptoms attributable to a cardiac condition with any level of physical activity. The examination report reflected an LVEF of 55 to 60 percent with normal wall motion, but abnormal wall thickness. A May 2019 DBQ indicates that the Veteran's CAD required continuous treatment with medication, and that the Veteran did not have CHF. The Veteran reported symptoms of dyspnea, fatigue, and angina with greater than 3 to 5 METs, and there was evidence of cardiac hypertrophy or dilatation. LVEF was 55 percent, and the examiner noted that the Veteran's CAD impacted his ability to work. The DBQ reflects that the Veteran had intermittent atrial fibrillation with 1 to 4 episodes in the past 12 months. The examiner noted that the Veteran had a heart valve condition affecting his mitral and tricuspid. A November 2019 VA examination report reflects that the Veteran has not had an MI or CHF, but had intermittent atrial fibrillation, with 1 to 4 episodes in the past 12 months, and constant sick sinus syndrome. The examiner also noted in a separate report an MET level of greater than 5 to 7 METs. A March 2019 letter from the Veteran's private physician indicates that the Veteran has developed progression of his CAD which ultimately led to stenting to his vein graft in May 2018. The physician reported that the Veteran states that he experiences "pressure" in the left side of his chest consistent with angina, which has resulted in the decreasing of his activity level. The Veteran reports trying to work out daily, but indicated that he is limited given the recurrence of his anginal symptoms. The evidence is at least evenly balanced as to whether the Veteran's CAD symptomatology more nearly approximates a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. While the previously discussed DBQs and examination reports reflect that the Veteran did not have CHF, and indicate an LVEF between 55 to 60 percent, the May 2019 VA examination report reflects an MET level of greater than 3 to 5 METs, with symptoms of dyspnea, fatigue, and angina. The Veteran has reported that while he tries to work out daily, his anginal symptoms limit his ability to do so. The Veteran is competent to report symptoms associated with his CAD, and there is no indication that he lacks credibility. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377, n.4 (Fed. Cir. 2007). Additionally, intermittent atrial fibrillation was noted, with 1 to 4 episodes in the past 12 months. The evidence is thus at least evenly balanced as to whether the Veteran's CAD symptomatology more nearly approximates a workload of greater than 3 METs but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial 60 percent rating for CAD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As this was the rating specifically requested by the Veteran as indicated by his June 2015 notice of disagreement, discussion with regard to whether an initial rating higher than 60 percent is warranted for the Veteran's CAD is unnecessary. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.