Citation Nr: 1005396 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 08-22 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 30 percent for coronary artery disease. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran had active service from February 1969 to December 1972. This matter is before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2007 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO), which continued a 30 percent rating for coronary artery disease. FINDING OF FACT Throughout the appeal period, the Veteran's coronary artery disease has not manifested 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 an evaluation in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1- 4.14, 4.100, 4.104, Diagnostic Code 7005 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in Jun e 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, the Veteran's pertinent treatment records have been secured and he was afforded VA examination in October 2007 to assess the severity of his disability. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. Service connection for coronary artery disease, associated with diabetes mellitus, was granted by the RO in a February 2005 rating decision. The Veteran's claim seeking an increased rating for coronary artery disease was received in May 2007. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C.A. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Court has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran's coronary artery disease has been rated 30 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. This Diagnostic Code provides for a 30 percent rating when there is documented coronary artery disease resulting in workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, 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. The next higher rating, 60 percent, is warranted where there is documented coronary artery 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 that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, Code 7005. A 100 percent rating is warranted where there is documented coronary artery disease resulting in chronic congestive heart failure, or; work- load of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. VA treatment records show that a left heart catheterization procedure was performed in July 2006. At that time, no obstructive disease was shown in the left main, but multiple stents were noted as having been placed in the left anterior descending artery. Records through June 2007 show that the Veteran's heart disease is stable on multiple medications. On October 2007 VA examination, the Veteran's medical history was reviewed. It was reported that he had a history of chest pain beginning in 1997 and was diagnosed with coronary artery disease. He had had a stent placement at that time, and multiple stent placements subsequently, the most recent being in 2007. He had occasional angina for which he took nitroglycerin, but not in the past 3 years. He had shortness breath and chest pain with heavy physical activity such as walking very fast. He did not have fatigue, dizziness, or syncope. He had never had congestive heart failure. There was no history of myocardial infarction. Current treatment included nitroglycerin, as needed; the medications Zocor, Plavix, metoprolol, isosorbide, and fosinopril. He got good response from these, without side effects. His METs were estimated at 7. An EKG stress test was not recommended because he walked with a cane. On physical examination, blood pressure was 134/76, pulse was 64 and respirations were 16. Heart had a regular rate and rhythm, with no murmurs, clicks, rubs, or extra sounds. PMI was in the fifth intercostal space, midclavicular line. Extremities were without edema. The diagnoses were coronary artery disease, under treatment, and status post placement of cardiac stent. An October 2007 echocardiogram showed heat size to be normal. A December 2007 VA stress test showed that the Veteran achieved a maximum work level on Bruce protocol, but the test was stopped just prior to completion due to pathological ST depressions. The impressions included a significant abnormal study demonstrating left ventricular chamber size within normal limits. The test was positive for ischemia by EKG criteria, with limiting chest pain during the exercise. The Veteran was immediately referred for hospitalization for cardiac catheterization. This showed a left heart ejection fraction of 65 percent. This was noncritical coronary artery disease and recommendations were made to increase the dosage of medications. The Veteran was discharged from the hospital the day after admission. The discharge diagnoses were coronary artery disease and hypertension. Additional VA outpatient records, dated through July 2008, continue to show that the Veteran receives treatment for his coronary artery disease. The Record does not show any episodes of congestive heart failure during the appeal period. Neither has a workload less than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope been demonstrated. Left ventricular ejection fraction is shown to be 68 percent, well over the 30 to 50 percent required for the 60 percent rating. Hence, the Veteran's overall disability picture most nearly approximates the criteria for his current 30 percent rating, and a higher rating is not warranted. The RO has not assigned staged ratings for coronary artery disease; a 30 percent rating has been assigned for the entire appeal period. As findings have been consistent throughout, staged ratings are not indicated, and a rating in excess of 30 percent is not warranted. The Board has also considered whether referral for extraschedular consideration is suggested by the record. There is no objective evidence or allegation in the record that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization" due to coronary artery disease as to suggest that referral for extraschedular consideration is indicated. 38 C.F.R. § 3.321(b). Finally, the Veteran is currently in receipt of a total rating by reason of individual unemployability due to service connected disabilities. ORDER A rating in excess of 30 percent for coronary artery disease is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs