Citation Nr: 1006512 Decision Date: 02/22/10 Archive Date: 03/02/10 DOCKET NO. 07-17 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating in excess of 30 percent for coronary artery disease (CAD) prior to October 22, 2009, and in excess of 60 percent thereafter. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. A September 2009 Board decision granted a separate 10 percent rating for hypertension and remanded the issue of entitlement to a rating in excess of 30 percent for CAD for a VA cardiovascular rating examination. That examination was conducted on October 22, 2009, and thereafter a December 2009 rating decision granted a 60 percent rating for CAD, effective as of the date of that examination. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Prior to October 22, 2009, the Veteran had an estimated workload of 4.5 to 5.2 METS and also had dyspnea. 2. Since October 22, 2009, the Veteran has not had chronic congestive heart failure; a workload of 3 METS or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for a 60 percent rating, but no higher, for CAD effective March 21, 2006, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 - 4.14, 4.104, Diagnostic Code 7005 (2009). 2. The criteria for a rating in excess of 60 percent for CAD are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1 - 4.14, 4.104, Diagnostic Code 7005 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126, became effective November 9, 2000, and the implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326. VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant of the information and evidence that VA will seek to provide; and (3) inform the claimant of the information and evidence that the claimant is expected to provide. A "fourth element" of the notice requirement, requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim, was recently removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). To the extent possible, under 38 U.S.C.A. § 5103(a) VCAA notice must be provided to a claimant before an initial unfavorable decision on a VA claim. Pelegrini v. Prinicipi, 18 Vet. App. 112, 119-20 (2004); see Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was provided notice of the VCAA in July 2006 prior to the initial December 2006 RO adjudication of the claim. The VCAA letter indicated the types of evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain both his private and VA medical treatment records. The letter also provided notice of the downstream disability rating and effective date elements of the claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini and Mayfield, both supra. Further, although that letter did not provided information concerning the impact of a service-connected disorder on employment and to provide examples of types of medical or lay evidence that may be submitted consistent with the Court's holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), affm'd in part by Vazquez-Flores v. Shineki, No. 2008-7150, slip op. (Fed.Cir. Sept. 4, 2009), that information was subsequently provide in the December 2009 supplemental statement of the case. The Veteran was afforded VA rating examinations in July 2006 and October 2009, the latter being pursuant to and in compliance with the Board's September 2009 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes VA examination reports, VA medical records, private treatment records, and statements from the Veteran and his representative. The most recent VA examiner opined that further testing in the form of an exercise test using a bicycle ergometer, which was not available at VA, might answer the question of what level of METS the Veteran might be able to achieve with exercise. Nevertheless, the examiner was able to provide an estimated METS level and did not indicate that there was any substantial doubt as to the accuracy of his estimate. Accordingly, the Board accepts that examiners estimated METS as being accurate for rating purposes. The Veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The Veteran has been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103. Law and Regulations Service-connected disorders are rated by comparing signs and symptoms with criteria in separate diagnostic codes which identify various disabilities listed in VA's Schedule for Rating Disabilities, based on average impairment in earning capacity. 38 U.S.C.A. § 1155. Disabilities are viewed historically and examination reports are interpreted in light of the history, reconciling the report into a consistent picture to accurately reflect the elements of disability present. 38 C.F.R. §§ 4.1, 4.2. A higher rating is assigned if a disorder more nearly approximates the criteria therefore but not all disorders will show all the findings specified for a particular disability rating, especially with the more fully described grades of disabilities but coordination of ratings with functional impairment is required. 38 C.F.R. §§ 4.7, 4.21. Separate ratings may be assigned either initially or during any appeal for an increased rating for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119 (1999) (initial staged ratings) and Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (staged ratings during the appeal of any increased rating claim). The RO has evaluated the Veteran's service-connected cardiovascular condition as 30 percent disabling, under 38 C.F.R. § 4.104; Diagnostic Codes 7101-7005. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). However, Diagnostic Code 7101 provides for the evaluation of hypertensive vascular disease which is now assigned a separate 10 percent disability rating. Under 38 C.F.R. § 4.104, Diagnostic Code 7005, arteriosclerotic heart disease (coronary artery disease) warrants a 30 percent rating when manifested by a 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. When 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, a 60 percent rating is warranted. A 100 percent rating is warranted when there is chronic congestive heart failure (CHF), 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 to 38 C.F.R. § 4.104 states that one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters 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. Background VA treatment records dated from October 2005 to July 2006 reflect minimal treatment for CAD and hypertension. The Veteran was admitted for private hospitalization on May 25, 2006. It was noted that he had been seen at his private physician's office on May 17, 2006, complaining of increasing shortness of breath, and at that time was taking nitroglycerin. At admission it was noted that he had been experiencing exertional chest pain and, most recently, increased shortness of breath. He had also been admitted in April for an episode of chest pain. Current testing revealed normal left ventricular systolic function with an ejection fraction of 55 percent. On VA cardiovascular examination on July 17, 2006, the Veteran's medications, and dosages, he took were recorded. The Veteran claimed to have two leaking cardiac valves. He reported having developed shortness of breath, for which he had sought treatment. An echocardiogram had been done about 8 months ago but the Veteran had not had surgery or changes in his medications for his reported leaky valves. The Veteran reported having had a cardiac catheterization about 3 months ago which had revealed 50 or 60 percent blockage of an artery. He stated that there had been no change in this since a prior catheterization in 1997. The Veteran complained of having chest pain 3 or 4 times weekly, for which he took either 1 or 2 tablets of nitroglycerin in the past year. He was not able to perform an exercise stress test due to a painful cyst of his left foot. He reported having shortness of breath after walking one block or with lifting 30 lbs. After lifting his grand- daughter, who weighed 30 lbs. he became short of breath. He reported having occasional dizziness and he was not sure why he had dizziness but it was not related to his heart. He denied having had syncopal episodes but complained of fatigue, although the fatigue had remained unchanged since his prior VA rating examination. He reported being able to play with his kids and engaging in activities such as lifting but having to stop and rest periodically. He was not able to go up steps without shortness of breath or chest pain. The examiner stated that this would make his estimated METS level as 4.5 to 5.2. The Veteran was able to dress without chest pain or shortness of breath. It was noted that the Veteran had not had cardiac surgery and did not have congestive heart failure, cardiomyopathy, pericarditis or endocarditis. He had not had any hospital admissions for chest pain since his last VA rating examination, although he was hospitalized twice prior to that. He reported having had 4 episodes of profuse sweating in the past 2 to 3 weeks. He denied that these episodes were associated with chest pain, nausea, vomiting, dizziness, syncope or palpitations. The episodes of dizziness lasted only for several mintues. He was advised to follow-up with his primary care physician due to frequent premature ventricular contractions (PVCs) and dizziness. On physical examination the Veteran's respirations were 18. He had no jugular venous distension and no carotid bruits. No murmur was detected. His lungs were clear to auscultation and he had no rales or wheezes. He had a productive cough. He had good pedal pulses, good radial pulses, and no edema. A current EKG revealed a sinus rhythm with frequent premature ventricular contractions (PVCs) and possible premature atrial contractions with aberrant conduction and voltage criteria for left ventricular hypertrophy. He was asymptomatic at the time of his EKG but he was advised to follow-up in an emergency room for the frequent PVCs. He was currently asymptomatic. A claim file review disclosed that a May 2005 echocardiogram revealed normal left ventricular size and systolic function with a calculated ejection fraction of 55 to 60 percent; normal right ventricular size and systolic function intermittent prolapse of the posterior mitral valve leaflets with mild mitral valve regurgitation; aortic sclerosis with mild insufficiency; trace tricuspid valve regurgitation; mild pulmonic insufficiency; and no evidence of intracavitary masses, thrombus or pericardial effusions. The pertinent diagnosis was CAD with an estimated METS level of 4.5 to 5.2, with the Veteran being unable to do an exercise stress test due to left foot pain. On VA cardiovascular examination on October 22, 2009, the examiner reviewed the Veteran's claim file. The examiner noted that the evidence on file indicated that the Veteran had CAD. He had had a cardiac catheterization in 1995 that had demonstrated a 50 to 60 percent lesion in the left anterior descending coronary artery. A repeat cardiac catheterization on May 26, 2006, had demonstrated an ejection fraction of 55 percent; a 40 percent proximal stenosis of the diagonal vessel, mid narrowing of the "LAD", and a 30 percent mid segment narrowing of the "LAD", and 20 percent stenosis of the right coronary artery, and "LVED" of 14 mm. of mercury. The cardiac catheterization reports of 1995 and May 2006 were reviewed. There was a 40 percent ostial proximal stenosis of the diagonal branch and abrupt tapering of the mid-segment of the left anterior descending coronary artery extending to the distal anterior apical segment. The vessel was less than 2 mm. in diameter, 30 percent stenosis of the mid-segment of the left circumflex system, and 20 percent stenosis of the mid-segment of the right coronary artery. Because of the patient's history of an inability to lift 30 lbs. repetitively, the examiner judged the Veteran's current workload to be less than 4.5 METS. That level of activity resulted in shortness of breath, as did climbing on flight of stairs. The Veteran could not exercise on a treadmill because of foot pain that was not amenable to operative intervention, thus an estimated METS was given. He had no history of acute or chronic congestive heart failure. His ejection fraction had been documented in the past to be in the range of 50 to 55 percent. His service treatment records indicated that through October 6, 1991, he was certified as having no limiting physical condition. He had retired in 1995. He was given medication for control of his blood pressure in 1995 or 1996. On physical examination the Veteran walked with a cane, limping and favoring the right foot. He was thin and in no acute distress. He weight was 170 lbs. There were no carotid bruits. He had a prolonged expiratory phase with forced expiration. There was wheezing and a cough. His heart was not enlarged but there were occasional PVCs. There were no murmurs and no gallops. There was an increase in the anterior-posterior diameter of his chest. There was no peripheral edema and his peripheral pulses were palpable and equal. In describing his chest discomfort, the Veteran stated that he required one to two nitroglycerin tablets on occasion to relieve his chest discomfort, which was described as a pressure-like sensation. This discomfort occurred either with rest or exercise. It happened several times a week or less frequently. It was not necessarily related to activities. Laboratory studies included a hemoglobin of 12.0 grams, platelet count of 257,000, white blood cell count of 5, 000, total cholesterol of 167, triglycerides of 61, HDL of 30, and LDL cholesterol of 115. The medications which the Veteran was taking were listed, as was the dosage of each. The impressions were hypertension, currently satisfactorily treated; atherosclerotic heart disease; probable chronic obstructive lung disability and chronic bronchitis; dyspnea on exertion climbing one flight of stairs or lifting 30 lbs. repetitively; and an estimated METS of 4.5 or less. It was noted that a chest CT in September 2008 revealed the Veteran's heart was normal in size. There was no pericardial effusion but coronary calcifications were present. There were atherosclerotic calcifications in the thoracic aorta. The pulmonary parenchyma showed nodules predominantly in the central lobular distribution in both lungs and lobular septal thickening present, predominantly in the lung bases. There was a 3 mm. nodule in the left upper lobe, unchanged form a prior examination. There was no pleural effusion and no pneumothorax. His central airways were patent. An October 2009 chest X-ray showed his heart was normal in size and his pulmonary vasculature was normal. There were increased marking in the lower lobes, bilaterally, but there were no discrete nodules. The impression at that time was that there was no active disease. The diagnosis was that the Veteran had documented atherosclerotic heart disease. Based on the current examination and available laboratory studies, the examiner felt that it was as likely as not that the Veteran's exertional shortness of breath was related to a combination of cardiac and pulmonary disease. When additional information was available, an addendum would be prepared. In a December 2009 addendum, the examiner stated that to apportion the shortness of breath between the pulmonary and cardiac systems would require a fee based combined cardio- pulmonary function test. After reviewing the pulmonary function test and the echocardiogram, the examiner opined that the results of additional testing favored attributing a greater portion of the Veteran's exertional shortness of breath to the documented decline in cardiac function, as opposed to the Veteran's pulmonary status. His foot pain limited his activity level and, therefore, it was not possible to state what level of METS he can or could achieve with exercise. An exercise test using a bicycle ergometer might permit this question to be answered, but this equipment was not available at VA. Analysis CAD 30 % Prior to October 22, 2009 The July 2006 VA examiner noted, based on a private test, that the Veteran had normal left ventricular function but an ejection fraction of 55 percent. This did not meet the criteria of left ventricular "dysfunction" with an ejection fraction of 30 to 50 percent. Also, during time from which the Veteran filed his claim for an increased rating, in March 2006, until the October 22, 2009, VA examination the Veteran had not had an episode of acute congestive heart failure. However, the July 2006 VA examiner estimated the Veteran's METS to be 4.5 to 5.2, which arguable meets the criteria of being between the 3 METS but not greater than 5 METS for a 60 percent rating; however, this numerical requirement must also be accompanied by evidence of one of the following, dyspnea, fatigue, angina, dizziness or syncope. Here, there was evidence of dyspnea, as reported on the July 17, 2006, VA examination. Dyspnea is shortness of breath, a subjective difficulty or distress in breathing ... [which] occurs normally during intense physical exertion or at high altitude. Wilkinson v. Brown, 8 Vet. App. 263, 265 (1995). Thus, as of that examination the Veteran met the criteria for a 60 percent rating for CAD. However, he did not have a workload of 3 METS or less, chronic congestive heart failure, or left ventricular dysfunction with an ejection fraction of less than 30 percent. So, he did not meet the criteria for a 100 percent schedular rating. CAD 60 percent The October 2009 VA examination found that the Veteran had an ejection fraction of 55 percent. This does not meet the criteria for a 60 percent rating for CAD based on an ejection fraction of between 30 to 50 percent. Nevertheless, and even presuming that the exertional shortness of breath was due to the service-connected CAD as opposed the nonservice-connected pulmonary disability, that VA examiner estimated the Veteran's METS to be 4.5, which meets the criteria of being between the 3 METS but not greater than 5 METS for a 60 percent rating. However, neither that examination nor the evidence as a whole shows that the Veteran has a workload of 3 METs or less or that he has left ventricular dysfunction with an ejection fraction of less than 30 percent, as required for a 100 percent schedular rating. The Board finds that since the claim was filed in March 2006 for an increase in the Veteran's disability it has been 60 percent disabling, but no more, so his rating cannot be "staged" because this represents his greatest level of functional impairment attributable to this condition during that time period. Hart, supra. Extraschedular Consideration Extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is addressed when either raised by the claimant or the evidence, and requires a three-step analysis. First, is whether the schedular criteria are adequate and, if they are, no extraschedular referral is required. Second, if inadequate, determine whether there is an exceptional disability picture considering such related factors as marked interference with employment (but not marked interference obtaining or retaining employment) or frequent periods of hospitalization. Third, if the rating criteria are inadequate and the related factors are present, the case must be referred for a determination of whether an extraschedular rating should be assigned. Thun v. Peak, 111, 115-16 (2008) (citing VA Gen. Coun. Prec. 6-1996, para. 7, and Fisher v. Principi, 4 Vet. App. 57, 60 (1993)) aff'd Thun v. Peake, 572 F.3d 1366 (Fed.Cir. 2009). Here, the schedular rating criteria are comprehensive and contemplate the full range of impairment from the Veteran's disability. Thus, the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate. So, the criteria for submission for consideration of an extra-schedular rating are not met. Thun, Id. ORDER A rating of 60 percent for CAD effective March 21, 2006, is granted, subject to applicable law and regulations governing the award of monetary benefits. A rating in excess of 60 percent for CAD is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs