Citation Nr: 1326872 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-28 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for ischemic heart disease. 2. Entitlement to an earlier effective date for the award of service connection for ischemic heart disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran served on active duty from July 1966 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2010 rating decision, service connection for ischemic heart disease was granted and the Veteran was assigned an evaluation of 10 percent effective in May 2010. The Veteran's evaluation was increased to 30 percent in an August 2011 rating decision effective from May 2010. In January 2011, the Veteran submitted a statement that can be construed as a disagreement with the effective date assigned for the award of service connection. Thus, the issue of entitlement to an earlier effective date for the award of service connection for ischemic heart disease is REMANDED to the RO via the Appeals Management Center (AMC). VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT The most probative evidence indicates the Veteran's ischemic heart disease is characterized by a workload of 6 metabolic equivalents (METs) or better on exercise testing and an ejection fraction of 54 percent. CONCLUSION OF LAW The criteria for an initial rating higher than 30 percent for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in June 2010 the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The June 2010 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in August 2011. This appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA examination reports, and private treatment records. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran is seeking an initial rating greater than 30 percent for ischemic heart disease. The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). For rating diseases of the heart, 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 rating, 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. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. Arteriosclerotic heart disease with 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, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 100 percent disabling. 38 C.F.R. § 4.104. Reviewing the evidence of record, an April 2010 private treatment record states that recent nuclear stress tests does demonstrate moderate inferior ischemia that was more pronounced than the prior study. However, the Veteran remains asymptomatic. He denied palpitations, chest pain, orthopnea, peripheral edema, syncope, or dyspnea. The physician stated that he was clinically without significant angina symptoms. The April 2010 Exercise Thallium Stress/Rest Myocardial Perfusion Imaging Study report stated "[a]ppropriate use criteria for cardiac radionuclide imaging were met" and that the Veteran "underwent an exercise test according to the exercise protocol." It was further noted that the Veteran "exercised for 10 minutes 17 seconds on Bruce Protocol reaching a maximal heart rate of 140 which corresponds to 89% of his maximum predicted heart rate, 10.1 METs and peak double product of 22,400. He did not have any chest pain but he had mild ST segment changes that were equivocal for myocardial ischemia." The technical quality of the study was noted to be good. The ejection fraction was 62 percent. The Veteran had a VA QTC examination in June 2010. During the examination the Veteran reported shortness of breath, dizziness and light headedness with activity, and constant fatigue. The Veteran took Lipitor, Zetia, Diovan, Toprol, and Plavix with a fair response to treatment. The diagnosis was ischemic heart disease status post-coronary artery bypass graft and angioplasty with residual hypokinesis. Daily activities were limited due to fatigue. The METs achieved was noted as 10.1, which presumably reflects the reported findings on the April 2010 private testing. The Veteran had a VA examination in November 2010 at which he reported shortness of breath and exhaustion with any type of physical activity. He could walk two miles in 55 minutes, was unable to perform yard work, and could use a vacuum cleaner for five to 10 minutes before resting. The Veteran denied problems with dizziness or fainting. The examiner estimated that the Veteran had 1 to 3 METs because the Veteran was able to perform activities such as eating, dressing, taking a shower, and slow walking. The Veteran was unable to perform work at the 3 to 5 METs level such as light yard work, mowing the lawn, and brisk walking. The Veteran reported that ischemic heart disease impacted his ability to work in that he could no longer do construction work and was only capable of performing light desk work. A chest x-ray showed no evidence of acute cardiopulmonary disease. In an addendum later that month, the examiner noted that the April 2010 stress test report was reviewed and that a METs of l0.1 was noted. The examiner noted this would be the accepted METs level, which is in disagreement with the estimated METs level obtained with activity information provided by the Veteran. The ejection fraction of 62 percent was also noted. A December 2010 VA Doppler study showed an ejection fraction of 50 to 55 percent, but the quality of the study was noted to be poor with images of suboptimal quality, and not obtained from all of the standard acoustic windows due to the limited scope of the study. The Veteran wrote in his December 2010 Notice of Disagreement that his METs score was inaccurate because he was instructed to continue taking his medication before the April 2010 testing and he was instructed to hold the handlebar for support while walking during testing. Furthermore, he alleges the Bruce Protocol was not used to determine his workload. The Veteran further wrote in January 2011 that he had another nuclear stress test using the Bruce Protocol at a private facility and that he was instructed to not take Toprol the day before. He noticed that 85 percent of his maximum heart rate was reached in less than four minutes, indicating that his workload is 5.0 METs or less. The Veteran underwent another VA examination in June 2011. No history of congestive heart failure or recent admissions for cardiac diseases was reported. The Veteran was able to take care of activities of daily living, walk two miles per hour, lift five to 10 pounds, and climb a flight of stairs slowly. A July 2011 myocardial perfusion scan with tomography showed an ejection fraction of 54 percent. It was noted that values below 45 percent were considered abnormal. The examiner again assessed an estimated METs of 1 to 3 and stated that METs are a better indicator of cardiac status. A stress test was ordered but not completed at that time. In July 2011, the Veteran underwent another exercise stress test. There was a workload of 6.70 METs with shortness of breath and fatigue. In reviewing the record, the Board notes that April 2010 testing showed a workload of 10.1 METs and that July 2011 testing showed a workload of 6.7 METs. Such findings correspond with no higher than a 30 percent rating. The Veteran has argued that the April 2010 test was improperly completed and that the Bruce Protocol was not used. However, the testing report notes such protocol was followed and that the technical quality of the study was noted to be good. The Veteran asked for another test, which was provided in July 2011. He now challenges the adequacy of that test due to blood pressure medication he was taking and has opined that the beta blocker made his METs score incorrect by lowering his heart rate. He provided his own calculation that his METs would be between 3 and 5. The record shows the Veteran has a past occupational history in construction and carpentry. There is no evidence that he has any medical training or expertise whatsoever. Thus, his opinion as to medical matters involving interpretation of heart tests and his calculation of his METs level is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The findings on the objective testing in April 2010 and July 2011 are highly probative, as they were conducted by medical professionals who accepted the results as valid. Indeed, medical professions were quick to note the inadequacy of the Doppler study in December 2010. There is no competent evidence of record indicating that the findings on the April 2010 and July 2011 stress test are erroneous. Moreover, the Veteran has alleged that the April 2010 test was not conducted using the Bruce Protocol, yet the report from that testing clearly stated such was, in fact, used. The Board finds the statement by the medical professionals conducting the testing, interpreting the results, and preparing the reports to be significantly more reliable and probative than the Veteran's unsupported lay assertions to the contrary. The Board notes that the November 2010 examiner and the June 2011 examiner both estimated the Veteran's METs level as 1 to 3. However, such estimate was based on the Veteran's report of symptoms, rather than objective findings. The Board finds the objective testing showing actual METs of 10.1 and 6.7 to be significantly more probative than the estimate based on the Veteran's report. Indeed, the November 2010 examiner provided an addendum that the actual METs is the accepted level. Furthermore, 38 C.F.R. § 4.104, Note (2) indicates that estimated METs may be used if exercise testing cannot be done. (Emphasis added). Such is clearly not the case here. Moreover, the Veteran's reported symptomatology on the June and November 2010 examinations regarding shortness of breath, constant fatigue, and dizziness with activity is inconsistent with his reports to his private physician in April 2010 and that physician's assessment of him as asymptomatic. Thus, the Board finds the Veteran's reported symptoms made during the course of seeking monetary benefits is less persuasive and reliable than statements made to his treating provider and findings on objective testing. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (the credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). Thus, the Board finds the METs determined based on objective testing to be significantly more probative than the estimated METs provided solely based on the Veteran's self-reported symptoms. Additionally, the Board finds that a higher rating is not warranted based on ejection fraction values. The Board notes that a December 2010 Doppler study indicated the ejection fraction was 50-55 percent. However, it was also noted that this study was of poor quality. As such, it is afforded less probative weight. The Board finds the ejection fraction on the April 2010 study of 62 percent, and the most recent testing showing an ejection fraction of 54 percent to be significantly more probative, as the testing results were accepted by the medical professionals with no qualifications as to the adequacy of the test or the results. See Madden v. Gober, 123 F.3d 1477, 1481 (Fed. Cir. 1997) (the Board is entitled to discount the weight, credibility, and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). In short, the most probative evidence indicates the Veteran's heart disease is productive of a workload of no less than 6 METs and an ejection fraction of 54 percent. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 30 percent for the Veteran's heart disease at any time during the course of the appeal. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for higher ratings for additional or more severe symptomatology. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. As a final matter, the Board acknowledges that the Veteran reported to the VA examiner in June 2010 that he left his construction job due to his heart disorder, although he would be able to do some light desk work. The Veteran has not alleged that he is unable to engage in gainful employment due to his heart disorder, nor does the record reveal an opinion indicating he is unemployable do to his heart disorder. The record reflects the Veteran received Social Security benefits due to his age, not disability. Accordingly, the Board finds that a claim for a total rating based on individual unemployability (TDIU) has not been reasonably raised, and no further action pursuant to Rice v. Shinseki is warranted. Rice, 22 Vet. App. 447 (2009) (a TDIU claim is part of an increased rating claim when such claim is raised by the record). In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's ischemic heart disease, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an initial rating higher than 30 percent for ischemic heart disease is denied. REMAND In a January 2011 statement the Veteran expressed disagreement with the effective date of the award of service connection for heart disease. He alleges that he has been suffering from the disorder since 1993. The Board finds this statement sufficient to constitute a Notice of Disagreement with the December 2010 rating decision concerning the May 14, 2010 effective date assigned for the award of service connection for ischemic heart disease. Accordingly, the Board is required to remand this issue to the RO for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the SOC, the claim should be returned to the Board only if the veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The RO should issue an SOC on the issue of entitlement to an earlier effective date for the award of service connection for ischemic heart disease, so that the Veteran may have the opportunity to complete an appeal on this issue (if he so desires) by filing a timely substantive appeal. The issue should only be returned to the Board only if a timely substantive appeal is filed. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs