Citation Nr: 0813585 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 07-20 612 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an increased rating in excess of 30 percent for the service-connected coronary artery disease. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The veteran had active military service from April 1951 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The veteran's appeal has been advanced on the Board's docket by reason of his advanced age. See 38 U.S.C.A. § 7107(a)(2)(C) (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The veteran's service-connected coronary artery disease is not manifested by 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. CONCLUSION OF LAW The criteria for the assignment of increased rating in excess of 30 percent for the service-connected coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.104 including Diagnostic Code 7005 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the duties imposed by VCAA and its implementing regulations, the Board finds that all notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. In December 2006, prior to the rating decision on appeal, the RO sent the veteran a letter advising him that in order to support a claim for higher evaluation for a service-connected disability, the evidence must show that the disability had become worse; the veteran had an opportunity to respond prior to the issuance of the February 2007 rating decision. The Board accordingly finds that the veteran has received sufficient notice of the information and evidence needed to support his claim for increased rating and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the December 2006 letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained that the claimant, and what evidence, if any, will be obtained by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). The December 2006 letter advised the veteran that VA is responsible for getting relevant records from any Federal Agency including medical records from the military, VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. The letter also advised the veteran that VA must make reasonable efforts to help the veteran get relevant records not held by any Federal agency, including State or local governments, private doctors and hospitals, or current or former employers. In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper VCAA notice should notify the veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; (3) the evidence, if any, to be provided by the claimant; and (4) a request by VA that the claimant provide any evidence in the claimant 's possession that pertains to the claim(s). As explained hereinabove, the first three content-of-notice requirements have been met in this appeal. The Board notes that the record does not show that the veteran was advised of the fourth content-of-notice requirement under Pelegrini (request that the claimant provide any evidence in his possession that pertains to the claim). However, even though the veteran was not expressly advised to "give us all you've got" the Board finds that this requirement has been constructively satisfied. As noted, the veteran has been advised of the evidence required to support a claim for increased rating and of the evidence of record. The Board finds that he has accordingly been constructively invited to give VA all the relevant evidence in his possession not already of record at VA. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," the Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. As indicated, in the matters now before the Board, documents fully meeting the VCAA's notice requirements were provided to the veteran after the rating action on appeal. However, the Board finds that the lack of full pre-adjudication notice in this appeal has not, in any way, prejudiced the veteran. The Board notes that the Court has held that an error in the adjudicative process is not prejudicial unless it "affects a substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such that the error affects 'the essential fairness of the [adjudication].'" Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board finds that, in this appeal, the delay in issuing section 5103(a) notice was not prejudicial to the veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after notice was provided. As indicated, the RO gave the veteran notice of what was required to substantiate the claim on appeal, and the veteran was afforded ample opportunity to submit such information and/or evidence. Neither in response to the documents cited above, nor at any other point during the pendency of this appeal, has the veteran or his representative informed the RO of the existence of any evidence-in addition to that noted below- that needs to be obtained prior to appellate review. Hence, the Board finds that any failure on VA's part in not completely fulfilling the VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2007). More recently, the Board notes that, on March 3, 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the in rating cases, a claimant must be informed of the rating formulae for all possible schedular ratings for an applicable rating criteria. As regards the claim for increase on appeal, the Board finds that this was accomplished in the June 2007 Statement of the Case (SOC), which suffices for Dingess. Dingess also held that VA notice must include information regarding the effective date that may be assigned, and this has was expressly done in the December 2006 letter and a May 2007 follow-up letter. Further, the Board's decision herein denies the claim for increased rating, so no effective date is being assigned. There is accordingly no possibility of prejudice under the notice requirements of Dingess as regards a claim for increased rating. With regard to the increased evaluation claim included in this decision, the Board is aware of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that: (1) VA notify the claimant that, to substantiate such a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the Board finds that the December 2006 VCAA letter was in substantial compliance with the first and fourth requirements of Vazquez-Flores to the extent that the veteran was notified that he needed to submit evidence of worsening that could include specific medical evidence, as well as lay evidence from other individuals. The Board is aware that the December 2006 VCAA letter did not provide the type of notification set forth in the second and third requirements of Vazquez-Flores. However, the veteran's December 2006 VA examination involved studies that paralleled the relevant diagnostic criteria. These studies, as well as the veteran's access to his VA examination reports (indicated in his representative's December 2007 statement, as the claims file had been reviewed by the representative), reflect that a reasonable person could have been expected to understand in this case what was needed to substantiate the claim. Moreover, as the veteran discussed his service- connected disability in terms of relevant symptomatology in his statements and as he described the functional effects of his disabilities on his everyday life in support of his claims during his examination, the Board is satisfied that he had actual knowledge of what was necessary to substantiate the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). For all of these reasons, the Board finds that any notice errors with regard to the second and third requirements of Vazquez-Flores are not prejudicial, inasmuch as they did not affect the "essential fairness of the adjudication." Sanders v. Nicholson, 487 F.3d at 889. The Board also notes that there is no indication whatsoever that any additional action is needed to comply with the duty to assist the veteran in connection with the claim on appeal. The veteran's service medical records and post-service VA medical records have been associated with the claims file. Neither the veteran nor his representative has identified, and the file does not otherwise indicate, that there are any other VA or non-VA medical providers having existing records that should be obtained before the claims are adjudicated. The veteran was afforded a VA examination in December 2006. Finally, the veteran was advised of his right to a hearing before the RO and/or before the Board, but he waived that right. Under these circumstances, the Board finds that the veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim for increased rating for the service-connected disability of coronary artery disease. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. §§ 3.102, 4.3 (2007). 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 entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The February 2007 RO rating decision continued the veteran's 30 percent disability rating for his service-connected coronary artery disease. Under 38 C.F.R. § 4.104, Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. A 10 percent disability rating is warranted when arteriosclerotic heart disease (coronary artery disease) results in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. A 30 percent disability rating is warranted when arteriosclerotic heart disease results in 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 dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent disability rating is warranted when Arteriosclerotic heart disease results 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. A 100 percent disability rating is warranted when arteriosclerotic heart disease results 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. A Note to Diagnostic Code 7005 provides that, if non-service- connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, the adjudicator is to request a medical opinion as to which condition is causing the current signs and symptoms. At the veteran's December 2006 VA examination he reported intermittent stabbing pain that was not associated with exertion and when he was in the supine position. He noticed worsening dyspena on moderate exertion for the past 2 months and it was revealed that he had mild mitral valve regurgitation. He did not have a history of congestive heart disease, rheumatic heart disease, hypertensive heart disease, syphilitic heart disease, endocarditis, or pericarditis. Continuous medication was required and he had a history of dyspena on moderate exertion; however, there was no history of syncope, fatigue, angina, or dizziness. The veteran's ejection fraction for left fraction dysfunction was greater then 50 percent. His echocardiogram showed a normal heart size and his EKG showed normal sinus rhythm, inferior q-waves, and inverted waves at V5-6. In May 2007 the veteran had an exercise test that showed after 4.29 minutes of exercise he had 6.3 METs on standard; the test was stopped due to generalized fatigue. There were no significant changes noted during the test. The Board finds after careful review of the veteran's VA examinations and treatment reports and comparing them to the rating criteria that the veteran does not meet the criteria for the next higher rating of 60 percent. The medical evidence does not show that his service-connected coronary artery disease resulted 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 resulted in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The Board notes that in March 2007 the veteran's friend submitted a lay statement that attested to the veteran's worsening condition and the visible changes. The Board notes that a layperson can certainly provide an eyewitness account of a veteran's visible symptoms. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, a layperson is not considered capable of opining, however sincerely, in regard to causation of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Given the facts above the Board finds that an increased rating in excess of 30 percent for the service-connected coronary artery disease is not warranted. ORDER An increased rating in excess of 30 percent for the service- connected coronary artery disease is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs