Citation Nr: 0814991 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 96-16 886 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUES 1. Entitlement to an increased disability rating for coronary artery disease, status-post coronary artery bypass graft, currently evaluated as 60 percent disabling. 2. Entitlement to an increased disability rating for sinusitis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran served on active duty from August 1954 to August 1957, and from September 1960 to March 1983. These matters initially came to the Board of Veterans' Appeals (Board) on appeal from an August 1995 decision of the RO that, in part, increased the disability rating to 30 percent for service-connected hypertension with heart disease; and denied a disability rating in excess of 10 percent for service-connected sinusitis. The veteran timely appealed for higher disability ratings. In August 2003, the RO increased the disability evaluation to 60 percent for coronary artery disease, status-post coronary artery bypass graft, effective August 18, 1999. Because higher evaluations are available for the veteran's coronary artery disease, status-post coronary artery bypass graft, and the veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In January 2005, the Board remanded the matters for additional development. The record reflects that the veteran failed to appear for a hearing before a Veterans Law Judge at the RO that was scheduled for October 12, 2004. In February 2006, the veteran indicated that he had not received notification of the hearing due to his prior change of address. In December 2006, the veteran indicated in writing that he was unclear as to whether he should request another hearing, but reserved his rights to do so. To date, the veteran has not requested another hearing. Under these circumstances, the veteran's request for a hearing is considered withdrawn. See 38 C.F.R. § 20.700 (2007). In September 1996, the veteran's former representative had raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). In February 2006, the veteran claimed an increased disability evaluation for his service-connected pneumothorax. As each of those issues has not been adjudicated, they are referred to the RO for appropriate action. FINDINGS OF FACT 1. Neither version of the regulations for rating disabilities of the cardiovascular system, or diseases of the nose and throat is advantageous to the veteran. 2. For the period from March 1995 to January 1998, the veteran's coronary artery disease, status-post coronary artery bypass graft has not been manifested by a history of acute coronary occlusion or thrombosis, or with a history of substantiated repeated anginal attacks; ischemia and congestive heart failure have not been demonstrated. 3. Beginning in August 1999, the veteran's coronary artery disease, status-post coronary artery bypass graft has been manifested by left ventricular dysfunction with an ejection fraction between 30 and 50 percent; ischemia and congestive heart failure have not been demonstrated. 4. For the period from September 1994 to October 1996, the veteran's sinusitis has been manifested primarily by moderate chronic sinusitis with crusting and infrequent headaches; three to six non-incapacitating episodes per year that require antibiotic treatment, or several non-incapacitating episodes and osteomyelitis are not shown. 5. Beginning July 22, 2003, the veteran's sinusitis has been manifested primarily by more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting; incapacitating episodes of sinusitis requiring prolonged treatment with antibiotics, surgeries, or evidence of osteomyelitis are not shown. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating for the veteran's coronary artery disease, status-post coronary artery bypass graft, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.104, Diagnostic Codes 7005, 7017 (1998 & 2007). 2. For the period from September 1994 to October 1996, the criteria for a disability rating in excess of 10 percent for sinusitis are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.97, Diagnostic Codes 6510 to 6514 (1995). 3. Beginning July 22, 2003, the criteria for a disability rating of 30 percent, but no more for sinusitis are met or more nearly approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.97, Diagnostic Codes 6510 to 6514 (1995 & 2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held that proper 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). Through January 2004 and December 2005 letters, the RO notified the veteran of elements of service connection, the evidence needed to establish each element, and evidence of increased disability. These documents served to provide notice of the information and evidence needed to substantiate the claims. VA's letters notified the veteran of what evidence he was responsible for obtaining, and what evidence VA would undertake to obtain. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA informed him that it would make reasonable efforts to help him get evidence necessary to support his claims, particularly, medical records, if he gave VA enough information about such records so that VA could request them from the person or agency that had them. The letters asked him if he had any additional evidence to submit, and thereby put him on notice to submit information or evidence in his possession. In the January 2007 supplemental statement of the case (SSOC), the RO specifically notified the veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board acknowledges that the letters sent to the veteran have not met the requirements of VCAA notice regarding increased rating claims. The letters are deficient as to both content and timing, and thus create a presumption of prejudice. In this case, the presumption has been overcome. The veteran was provided with correspondence regarding what was needed to support his claims in December 2005. Specifically, he was told to submit evidence of physical and clinical findings, results of laboratory tests, and individual statements from those with knowledge and/or personal observations who could describe the manner in which his disability had worsened. The February 2006 SOC presented the former rating criteria for both respiratory and cardiovascular disabilities. The SSOCs issued in October 1996, October 2000, and in February 2007 also listed each applicable diagnostic code and disability rating under the revised criteria for respiratory and cardiovascular disabilities, which includes objective testing and which the veteran reasonably could be expected to understand to support his claims. In correspondence submitted in December 2006, the veteran described the effects that his disabilities were having on his daily activities. He reported that he was unable to hold any normal job or participate in any exercise or sport, except slow walking with frequent rest, due to his service- connected coronary artery disease, status-post coronary artery bypass graft. He also reported treatment with antibiotics and various medications on a continuing basis for sinusitis, to avoid further heart complications. The veteran is also represented by a state veterans' organization. Accordingly, any notice error is not prejudicial because the veteran has demonstrated actual knowledge of the information that is necessary to support the claims. Hence, the notice deficiencies do not affect the essential fairness of the adjudication. There is no indication that any additional action is needed to comply with the duty to assist the veteran. The RO has obtained copies of the veteran's service medical records and outpatient treatment records, and has arranged for the veteran to undergo VA examinations in connection with the claims on appeal, reports of which are of record. The veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the veteran in substantiating the claims. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in 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. 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2007). The veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. 4.1. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. Coronary Artery Disease, Status-Post Coronary Artery Bypass Graft An August 1995 RO rating decision increased the evaluation for coronary artery disease, status-post coronary artery bypass graft, to 100 percent, effective from March 1994, under the provisions of 38 C.F.R. § 4.30 based on surgery and convalescence for this condition, and then assigned a 30 percent evaluation, effective from March 1995. Since then, the RO has evaluated the veteran's coronary artery disease, status-post coronary artery bypass graft, under 38 C.F.R. § 4.104, Diagnostic Code 7017, as 30 percent disabling, effective May 1, 1995; and as 60 percent disabling, effective August 18, 1999. During the course of this appeal, VA revised the criteria for evaluation of disabilities of the cardiovascular system, effective January 12, 1998. 62 Fed. Reg. 65207-65224 (Dec. 11, 1997). The revised rating criteria are not applicable to the period prior to their effective date, while VA must consider the applicability of the revised and former versions of the rating criteria for the period after the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 7-2003; 69 Fed. Reg. 25,179 (2004). Under former Diagnostic Code 7017, a total evaluation is assigned for coronary artery bypass for one year following the bypass surgery. Thereafter, the condition is rated as arteriosclerotic heart disease, with 30 percent as the minimum rating. 38 C.F.R. § 4.104, Diagnostic Code 7017 (1997). Under former Diagnostic Code 7005 pertaining to arteriosclerotic heart disease, a total evaluation is warranted during and for six months following acute occlusion or thrombosis, with circulatory shock. A total evaluation is also warranted after six months where there are chronic residual findings of congestive heart failure or angina on moderate exertion, or where more than sedentary employment is precluded. A 60 percent evaluation is warranted following a typical history of acute coronary occlusion or thrombosis, or with a history of substantiated repeated anginal attacks, if more than light manual labor is not feasible. The minimum rating, 30 percent, is warranted following a typical coronary occlusion or thrombosis, or with a history of substantiated anginal attack, if ordinary manual labor is feasible. 38 C.F.R. § 4.104, Diagnostic Code 7017 (1997). Under the revised regulations, coronary artery disease with workload of greater than 7 METs (metabolic equivalents) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness or syncope, or continuous medication required warrants a 10 percent rating. A 30 percent rating is warranted 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 EKG, echocardiogram or X-ray. A 60 percent rating is warranted when there is 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. A 100 percent rating is warranted when there is 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 100 percent evaluation is also warranted for 3 months following hospital admission for coronary bypass surgery. 38 C.F.R. § 4.104, Diagnostic Code 7017, effective January 12, 1998. The report of the February 1996 VA examination reveals that the veteran had no further surgical or medical intervention, no stress test, thallium stress, or cardiac catheterization done since 1994. Although the veteran reported some chest pain and shortness of breath when walking for a few minutes on a 10 degree slope, he reportedly had not used any nitroglycerin for at least one year. His medications had not changed, and his blood pressure was under control. The examination of the cardiovascular system was essentially normal. In October 1996, the veteran's treating physician indicated that the veteran underwent a repeat angioplasty and required medical therapy for control of his hypertension and angina pectoris. Records reflect that the veteran's coronary artery disease, status-post coronary artery bypass graft, was asymptomatic from January 1997 to October 1997. Here, for the period from March 1995 to January 1998 (prior to the change in rating criteria), the overall evidence reflects that no more than the currently assigned disability rating of 30 percent is warranted under former Diagnostic Code 7017. There is neither a history of substantiated repeated anginal attacks nor findings of congestive heart failure to warrant an increased disability rating under the former criteria. Records of an exercise tolerance test in November 1998 reveal a maximum METS reading of 11.7. In August 1999, the veteran underwent cardiac catheterization. The ejection fraction at that time was estimated at 45 percent. VA outpatient treatment records, dated in October 2002, again reflect an ejection fraction of 45 percent. The veteran could walk for 30 to 60 minutes on a level area, and up three flights of stairs. No change in activity level was indicated. The report of a July 2003 VA contract examination includes a diagnosis of probable congestive heart failure, represented by pulmonary vascular congestion. His ejection fraction was estimated to be 45 to 50 percent. Records show that the veteran underwent further cardiac interventional procedures for unstable angina in September 2003. VA outpatient treatment records, dated in February 2006, reflect an ejection fraction of 45 percent. The veteran reported no recent chest pain or shortness of breath. Records show that he recently had stents placed in January 2006. During an April 2006 VA examination, the veteran reported intermittent dyspnea not clearly related to activity, but worse when supine. He had occasional chest pain that occurred at rest or with activity. A subsequent stress test revealed normal left ventricular systolic function. In a May 2006 addendum, the examiner could not exclude ischemia, but noted that the veteran had not been diagnosed with congestive heart failure, acute or chronic. The examiner estimated the veteran's exercise capacity to be approximately 10 METS. There was no indication for cardiac catherization or additional work up at that time. Records show that the veteran underwent another cardiac interventional procedure in February 2007. In this case, the evidence first revealed left ventricular dysfunction with an ejection fraction between 30 and 50 percent in August 1999, to warrant the RO's assignment of a 60 percent disability rating under the revised criteria at that time. However, the veteran's coronary artery disease, status-post coronary artery bypass graft, does not meet the criteria for a disability rating in excess of 60 percent under either the former or revised criteria. There is neither evidence of acute occlusion or thrombosis with circulatory shock, nor evidence of chronic residual findings of congestive heart failure to warrant an increased disability rating under former Diagnostic Code 7005. Nor does the evidence reflect a 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 to warrant an increased disability rating under the revised criteria, Diagnostic Code 7017. In this case the veteran has been suspected of having ischemia and/or probable congestive heart failure at times. These suspicions were not expressed with any degree of certainty, and were not confirmed by diagnostic studies. The most recent examiner concluded that the veteran had not been diagnosed with congestive heart failure, acute or chronic. In a claim for increase, the most recent evidence is given precedence over past examinations. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Francisco, 7 Vet. App. at 58. The weight of the evidence appears to be against a finding of either current ischemia or congestive heart failure, and the Board will therefore not consider evaluating the veteran's disability under criteria for those conditions. The weight of the evidence is thus against the grant of a disability rating in excess of 60 percent for coronary artery disease, status-post coronary artery bypass graft, under the former or revised rating criteria. B. Sinusitis The RO has evaluated the veteran's sinusitis under 38 C.F.R. § 4.97, Diagnostic Code 6510, as 10 percent disabling, effective March 16, 1988. During the course of this appeal, VA revised the criteria for evaluation of diseases of the nose and throat, effective October 7, 1996. 61 Fed. Reg. 46720-46731 (Sept. 5, 1996). As noted above, the revised rating criteria are not applicable to the period prior to their effective date, while VA must consider the applicability of the revised and former versions of the rating criteria for the period after the effective date of the change. Kuzma, 341 F.3d at 1327; DeSousa, 10 Vet. App. at 467; VAOPGCPREC 7-2003; 69 Fed. Reg. 25,179 (2004). Under the former General Rating Formula for sinusitis (Diagnostic Codes 6510 through 6514), a noncompensable evaluation is warranted for chronic sinusitis with only x-ray manifestations and mild or occasional symptoms. A 10 percent rating requires moderate chronic sinusitis manifested by a discharge, crusting or scaling and infrequent headaches. A 30 percent evaluation is warranted for severe chronic sinusitis manifested by frequently incapacitating recurrences, severe and frequent headaches, and a purulent discharge or crusting reflecting purulence. A 50 percent rating requires either chronic osteomyelitis necessitating repeated curettage following a radical operation or severe symptoms after repeated operations. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514 (1995). Under the revised regulations, a noncompensable evaluation is warranted for chronic sinusitis with only x-ray manifestations. A 10 percent rating requires one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating requires three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent rating requires osteomyelitis following radical surgery or; near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Codes 6510 through 6514 (2007). VA progress notes, dated in December 1995, noted septal spur on left nare and small amount of crusting. During a February 1996 VA examination, the veteran reported sinus problems about one or two times yearly, and that he takes several different medications. No sinus surgery has been done. His sinuses were nontender and the nares were open without boggy swelling. The diagnosis was sinusitis with biannual flare-ups. VA progress notes, dated in November 1996, reflect recurrent sinus infection. There was no purulence. Here, for the period from the date of claim in September 1994 to October 1996 (prior to the change in rating criteria), the overall evidence reflects that no more than the currently assigned disability rating of 10 percent is warranted under former Diagnostic Code 6510. There is neither severe chronic sinusitis nor findings of frequent incapacitating recurrences, frequent headaches, or purulent discharge to warrant an increased disability rating under the former criteria. During an October 1997 VA examination, the veteran reported more frequent sinus infections, occurring five to six times yearly and causing malaise and a yellow-green drainage. Examination revealed sinuses to be asymptomatic at the time. The nares were open and the sinuses were clean and nontender. During a July 2003 VA examination, the veteran reported sinus infections occurring 12 times per year, and that each episode lasted about two weeks. He is incapacitated as often as one time per month. The veteran also reported headaches with the sinus attacks, and antibiotic treatment. Sinusitis was present at examination; no purulent discharge was noted. In December 2006, the veteran reported that his sinusitis requires at least three, but usually more, treatments with antibiotics annually, in addition to nasal sprays, washes, and antihistimes. The veteran also reported that his doctors have encouraged him to stock antibiotics and to take them at the first sign of infection, due to danger of further heart complications. In this case, recent medical evidence (from July 22, 2003) shows that the veteran has sought medical treatment for more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. There is no indication in the record of any incapacitating episodes of sinusitis that required prolonged treatment with antibiotics, nor of any required surgeries; nor is there evidence of osteomyelitis. In light of such evidence, the Board finds that the veteran's sinusitis more nearly approximates the criteria for a 30 percent rating under both the former and revised criteria, for the period from July 22, 2003. Accordingly, beginning July 22, 2003, a rating of 30 percent is warranted under Diagnostic Codes 6510 through 6514. 38 C.F.R. § 4.7. In reaching this decision, the Board has resolved any doubt in favor of the veteran. C. Extraschedular Consideration There is no showing that the veteran's service-connected disabilities have resulted in so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). In this regard, the Board notes that the veteran's disabilities have not been shown to markedly interfere with employment (i.e., beyond that contemplated in the assigned ratings), to warrant frequent periods of hospitalization, or to otherwise render impractical the application of the regular schedular standards. The veteran is not currently working, and there is no evidence of recent hospitalizations. In the absence of evidence of any of the factors outlined above, the criteria for referral for consideration of an extraschedular rating have not been met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER An increased rating for coronary artery disease, status-post coronary artery bypass graft, is denied. Prior to July 22, 2003, a disability rating in excess of 10 percent for sinusitis is denied. As of July 22, 2003, a 30 percent rating for sinusitis is granted, subject to the pertinent legal authority governing the payment of monetary benefits. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs