Citation Nr: 0913774 Decision Date: 04/13/09 Archive Date: 04/21/09 DOCKET NO. 05-34 072 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES Entitlement to an increased rating for the service-connected coronary artery disease (CAD), status post coronary artery bypass graft (CABG) with hypertension, angina and history of chronic nephritis, evaluated as 30 percent prior to September 5, 2008 and 60 percent since September 5, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The Veteran had active military service from April 1943 to January 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in New York, New York. In August 2007 the Board remanded the issue on appeal for further development. During the pendency of the appeal, the RO issued a November 2008 rating decision which granted the Veteran an increased rating of 60 percent for his service-connected CAD, status post CABG with hypertension, angina and history of chronic nephritis, effective September 5, 2008. Nevertheless, as a rating higher than 60 percent for the service-connected CAD, status post CABG, with hypertension, angina and history of chronic nephritis, is available, and inasmuch as a claimant is presumed to be seeking maximum available benefit for a given disability, the claim for higher ratings, as reflected on the title page, remains viable on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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) (2008). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. Prior to September 5, 2008, the Veteran's service- connected CAD, status post CABG with hypertension, angina and history of chronic nephritis, was manifested by more a workload of 7 METS which resulted in dyspnea, fatigue, angina, dizziness, or syncope. 3. From September 5, 2008 to present, the Veteran's service- connected CAD, status post CABG with hypertension, angina and history of chronic nephritis is manifested by a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope. CONCLUSIONS OF LAW 1. Prior to September 5, 2008, the criteria for the assignment of a rating in excess of 30 percent for service- connected CAD, status post CABG with hypertension, angina and history of chronic nephritis, were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.104 including Diagnostic Codes 7005 - 7017 (2008). 2. From September 5, 2008 to present, the criteria for the assignment of a 100 percent rating for service-connected CAD, status post CABG with hypertension, angina and history of chronic nephritis, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.104 including Diagnostic Codes 7005 - 7017 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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) (2008). 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 April 2004, after 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 August 2004 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 April 2004 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 April 2004 letter and a September 2007 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 letters 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, the first three content-of-notice requirements have been met in this appeal. On April 30, 2008, VA amended its regulations governing its duty to provide a claimant with notice of the information and evidence necessary to substantiate a claim. See 73 Fed. Reg. 23,353 (Apr. 30, 2008). Importantly, the third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications for benefits pending before VA on, or filed after, May 30, 2008. 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 the 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 appellant after the rating action on appeal. However, the Board finds that any arguable lack of full pre- adjudication notice in this appeal has not, in any way, prejudiced the appellant. 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 September 2005 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 March 2006 letter. 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 April 2004 and September 2007 VCAA letters were 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 April 2004 and September 2007 VCAA letters did not provide the type of notification set forth in the second and third requirements of Vazquez-Flores. However, the Veteran's May 2004, September 2005, and September 2008 VA examinations 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 March 2009 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 VA examinations in May 2004, September 2005, and September 2008. 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, status post CABG with hypertension, angina and history of chronic nephritis. 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 (2008). 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 August 2004 RO rating decision continued the Veteran's 30 percent disability rating for his service-connected CAD, status post CABG with hypertension, angina and history of chronic nephritis. However, during the pendency of the appeal, the November 2008 rating decision granted the Veteran an increased rating of 60 percent, effective September 5, 2008. The Veteran was granted his 30 and 60 percent disability ratings under 38 C.F.R. § 4.104, Diagnostic Codes 7005 and 7019. Diagnostic Code 7005 is for arteriosclerotic heart disease (coronary artery disease) and Diagnostic Code 7017 is for coronary bypass surgery. Under 38 C.F.R. § 4.104, Diagnostic Code 7005 and Diagnostic Code 7017 have the same rating criteria with the exception that Diagnostic Code 7017 allows for a 100 percent disability rating for three months following hospital admission for surgery. Under 38 C.F.R. § 4.104, Diagnostic Code 7005 and Diagnostic Code 7017 a 10 percent disability rating is warranted when 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 there is 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 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 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 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. Note (2) states that if a laboratory determination of METs by exercise testing cannot be done for medical reasons, and estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shovelling snow) that results in dyspnea, fatigue, angina, dizziness or syncope may be used. The Veteran had a VA heart examination in May 2004 where it was noted that he had triple bypass surgery in 1998 and that he was diagnosed with abdominal aortic aneurysm. He denied congestive heart failure, acute rheumatic heart disease, and myocardial infarction. It was noted that the Veteran had no cardiac procedure since 1998. His EKG showed normal sinus rhythm and no signs of left ventricular hypertrophy. It was noted that it was medically contraindicated for the Veteran to undergo a stress test because of his abdominal aortic aneurysm and the VA examiner stated that the Veteran's report of being able to walk two flights of stairs gave him an approximate METs of 7. A September 2005 VA examination report shows the Veteran denied chest pain, angina, dizziness, and syncope; however, he reported some fatigue and dyspnea. It was noted that the Veteran could walk two flights of stairs, giving him an approximate METs of 7. It was also noted that the Veteran could not perform stress testing because of a 4.4 cm abdominal aneurysm and it was contraindicated to stress the Veteran. A September 2008 VA examination report shows the Veteran had a history of CAD, status-post triple bypass in 2002. He reported some chest pain, fatigue, and dizziness; however, he denied dyspnea or syncope. It was noted that the Veteran could not undergo a stress test medically because he had an aortic aneurysm. The Veteran reported that he could walk a flight of stairs and walked 2 miles a day that took him an hour. The examiner opined that this level of activity gave the Veteran an approximate METs of 3 or 4. The examiner noted that the Veteran's cardiovascular disability did not affect his activities of daily living. The VA examiner confirmed the diagnosis of CAD. After careful review of the relevant medical evidence, the Board finds that a disability rating in excess of 30 percent is not warranted for the time period prior to September 5, 2008 as the VA examination reports clearly show estimated METs of 7. Nevertheless, after resolving any benefit of the doubt in favor of the Veteran under the provisions of 38 U.S.C.A. § 5107(b), the Board finds that the Veteran's CAD disability warrants a 100 percent disability rating for the time period from September 5, 2008 to present as the September 5, 2008 VA examination report shows estimated METs of "3 or 4." ORDER Prior to September 5, 2008, a disability rating in excess of 30 percent for the service-connected CAD, status post CABG with hypertension, angina and history of chronic nephritis is denied. From September 5, 2008 to present, a disability rating of 100 percent for service-connected CAD, status post CABG with hypertension, angina and history of chronic nephritis, is granted, subject to the regulations controlling the award of VA monetary benefits. ____________________________________________ M. N. HYLAND Acting Veterans Law Judge, Board of Veterans' Appeals