Citation Nr: 1623071 Decision Date: 06/08/16 Archive Date: 06/21/16 DOCKET NO. 14-07 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for coronary artery disease (CAD) prior to December 29, 2015 and in excess of 60 percent thereafter. ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1968 to November 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that inter alia granted service connection for CAD and assigned a 10 percent disability rating effective September 9, 2010. The Veteran filed a notice of disagreement (NOD) in September 2011, and in December 2013, the RO issued a Statement of the Case (SOC) with respect to a higher rating for the Veteran's service-connected CAD and assigned a 30 percent disability rating effective September 9, 2010; a timely substantive appeal was filed. The Board remanded the matter to the RO in November 2014 for further development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). A February 2016 rating decision and supplemental SOC (SSOC) assigned an increased rating of 60 percent for CAD from December 29, 2015. This appeal was processed using the Veterans Benefit Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. From September 9, 2010 through December 28, 2015, the most probative evidence of record shows a workload of greater than 5 METs and no evidence of chronic congestive heart failure or ejection fraction of 50 percent or less. 2. Since December 29, 2015, the most probative evidence of record shows a workload of greater than 3 METs, and no evidence of chronic congestive heart failure or left ventricular dysfunction with an ejection fraction less than 30 percent. CONCLUSIONS OF LAW 1. From September 9, 2010 through December 28, 2015, the criteria for a rating higher than 30 percent for CAD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005 (2015). 2. From December 29, 2015, the criteria for a rating higher than 60 percent for CAD have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, DC 7005 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist VA has certain duties to notify and assist a claimant. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Here, VA's duty to notify was satisfied through notice letters dated in September 2010 and November 2015 that informed the Veteran of the evidentiary requirements for direct service connection and increased rating claims, the division of responsibility between the Veteran and VA for obtaining evidence, and the process by which disability ratings and effective dates are assigned. Regarding the duty to assist, service treatment records and all identified post-service evidence has been associated with the claims file. Additionally, VA cardiology examinations were performed in October 2013, October 2015, and December 2015, that include consideration of the Veteran's medical history and consideration of the claims file, and sets forth all pertinent findings such that the Board is able to make a fully informed decision. These examinations are adequate for evaluating CAD. Accordingly, the duty to assist is satisfied. II. Increased Ratings Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is service-connected for CAD with an initial disability rating of 30 percent effective September 9, 2010 and 60 percent effective December 29, 2015. 38 C.F.R. § 4.104, DC 7005. Pursuant to DC 7005, CAD resulting in workload of greater than 5 METs but not greater than 7 METs, with dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray warrants a 30 percent evaluation. 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent warrants a 60 percent rating. A 100 percent evaluation is warranted for chronic congestive heart failure; or workload of 3 METs or less resulting 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, D 7005. Private treatment records from Duke University Hospital dated from January 13, 2008 to January 31, 2008 include operative reports and the discharge summary due to chest pain and angina status post stent placement. Private treatment records from Dr. M.T.R. dated from June 2008 to December 2008 show that the Veteran continued to do well with dual antiplatelet therapy, and medicine to include aspirin and clopidogrel for at least one year status-post stent placement. An October 2010 statement from Dr. R. notes the Veteran's January 2008 stent placement with ejection fraction of 55 percent with no valve disease or wall motion abnormalities. The Veteran was afforded multiple VA cardiology examinations in October 2013, October 2015, and December 2015. On examination in October 2013, diagnoses included hypertensive heart disease and CAD, status-post segment elevation myocardial infarction (STEMI) performed during hospitalization in 2008. It was noted that an echocardiogram performed in 2008 previously showed an ejection fraction of 55 percent and also that the Veteran did not experience congestive heart failure. Interview-based METs test concluded a workload of 5 to 7 METs resulting in dyspnea, fatigue, angina, and dizziness. The examiner's finding was ischemic heart disease (IHD) with hypertensive heart disease status-post STEMI. See October 2013 Heart Conditions Disability Benefits Questionnaire (DBQ) located in Virtual VA. An October 2015 VA heart conditions DBQ shows that x-ray of the chest revealed the heart and mediastinum to be remarkable. Examination of the heart revealed regular rhythm and auscultation was normal. An electrocardiogram showed no signs of cardiac dilatation, arrhythmias, cardiac hypertrophy, or ischemia. Congestive heart failure was also not found. The examiner opined that there is no significant abnormality. Interview-based METs test reflects the Veteran denied experiencing symptoms with any level of physical activity. An echocardiogram performed in November 2015 one month after examination, showed an ejection fraction of 75 percent with mild anterior hypokinesis, in which the October 2015 VA examiner determined was not significant. A December 29, 2015 VA heart conditions DBQ notes that the Veteran was hospitalized in November 2014 for hyperosmotic hyperglycemia, which was determined to be unrelated to service-connected CAD. METs testing was not performed because it was not required as part of the Veteran's treatment plan. Upon interview-based METs test, given the Veteran's reported symptoms of dyspnea and angina, the examiner estimated his METs level would be greater than 3 and not greater than 5 METs and opined that METs limitation is due to angina and most reflective of the Veteran's current cardiac functional capacity. The examiner also found that valvular heart disease was asymptomatic. VA treatment records from Durham VA Medical Center dated from October 2007 to November 2015 document the Veteran's normal heart rate and medications for CAD were prescribed. These records do not show that a rating higher than 30 percent is warranted prior to December 29, 2015, as during this time there was no evidence of chronic congestive heart failure, workload of 5 METs or less, or ejection fraction of 30 to 50 percent. Additionally, a rating higher than 60 percent is not warranted at any point during the appeal period following December 29, 2015, as there has been no evidence of chronic congestive heart failure, workload approximating 3 METs or less, or ejection fraction approximating less than 30 percent. The October 2013 VA examination showed a workload of greater than 5 METs, per interview-based METs testing, indicative of a 30 percent disability rating. The December 2015 VA examination report notes the Veteran denied experiencing symptoms of dyspnea, fatigue, angina, dizziness, or syncope with any level of physical activity, and the results of the interview-based METs test conducted on examination in December 2015 determined a workload of greater than 3 METs, indicative of a 60 percent disability rating. As the preponderance of the evidence reflects that the symptoms of the Veteran's CAD have not more nearly approximated the criteria for the next highest rating at any point during the appeal period, higher evaluations are not warranted. The benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Extraschedular Consideration Additionally, the Board finds that the Veteran's CAD does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability and the established criteria found in the rating schedule to determine whether a veteran's disability picture is adequately contemplated by the rating schedule. Id. If the disability picture is not adequately contemplated by the rating schedule, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for CAD is inadequate. A comparison between the level of severity and symptomatology of the Veteran's CAD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Thus, the Veteran's current schedular rating under DC 7005 is adequate to fully compensate him for his disability on appeal, and referral for extraschedular consideration is not warranted. Under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, there are no symptoms caused by service-connected disability that have not been attributed to and accounted for by a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed to the combined effect of multiple conditions. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has not suggested that his CAD precludes his employment. On the December 2015 examination, the examiner's report reflects that CAD impacted the Veteran's ability to work noting his inability to walk more than 75 feet continuously due to angina, and his inability to walk quickly or complete yard work. The December 2013 examination report indicates that CAD impacted his ability to work, noting the Veteran's report of fatigue with any sustained physical activities to include walking to and from his current employment despite reported sedentary occupation. A January 2008 private treatment record notes the Veteran worked full time as an engineering tech and Baptist preacher. See Duke University Hospital progress note. An October 2013 DBQ examination report notes the Veteran has maintained employment since 1978 working for a textile company. While the clinical evidence reflects some impact on the Veteran's employability, there is no indication that the Veteran is unable to maintain employment due solely to CAD. The current evaluation reflects a significant but not total industrial impairment. Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. ORDER A rating in excess of 30 percent for CAD prior to December 28, 2015, is denied. A rating in excess of 60 percent for CAD following December 29, 2015, is denied. ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs