Citation Nr: 1010771 Decision Date: 03/22/10 Archive Date: 03/31/10 DOCKET NO. 07-03 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for coronary artery disease requiring stent placement, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The Veteran had active military service from October 1965 to May 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that denied a rating in excess of 10 percent for the Veteran's disability. In January 2010, the Appeals Management Center increased the Veteran's disability rating from 10 percent to 30 percent. The Veteran continued his appeal. The Board remanded this matter in November 2008 for additional development. All development has been completed and the matter is ready for adjudication. FINDINGS OF FACT 1. The Veteran's coronary artery disease is manifested by a left ventricular ejection fraction of more than 60 percent. 2. The Veteran is unable to perform the treadmill test because of knee and back pain, but the Veteran's metabolic capability is estimated as 5 to 6 METS. 3. There is no evidence of congestive heart failure. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for coronary artery disease requiring stent placement have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 4.1-4.10, 4.104, Diagnostic Code 7005 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (as in this case). Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims. In this case, the Veteran seeks a disability rating greater than 30 percent for his service connected coronary artery disease requiring stent placement. The RO rated the Veteran under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005 (2009). Under DC 7005, a 60 percent evaluation for coronary artery disease is warranted for more than one episode of acute congestive heart failure in the past year; or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent evaluation is warranted for chronic congestive heart failure; or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. 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. See 38 C.F.R. § 4.104, Note 2. METs testing is also not required when the left ventricular ejection fraction has been measured and is less than 50 percent, when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year, or when a 100 percent evaluation can be assigned on another basis. 38 C.F.R. § 4.104 (b). Of record are treatment records from P.R.M.C. which show that the Veteran had a stent placed in June 2006. In October 2006, the Veteran had a VA examination. The examiner did not have the claims file for review. He said he was unable to estimate the Veteran's MET level because the Veteran was unable to perform the exercise tolerance test due to his low back condition. The Veteran was unable to answer questions regarding levels of activity as he had no chest pain with activity. The examiner said that the Veteran had an ejection fraction of 62 percent in March 2006. Since the examiner did not review the claims file and was unable to estimate the Veteran's MET level, the examination is of little probative value. The Veteran had a VA examination in December 2008. The examiner reviewed the claims file. During the examination, the Veteran stated that he has episodic chest pain 6 to 8 times per year. The Veteran takes nitroglycerin occasionally for these episodes, estimated at once per month. The examiner stated that the Veteran was unable to complete a recent treadmill test because of his degenerative joint disease in the knees and back. The Veteran reported no orthopnea or PND, palpitations, or syncope. The Veteran said he has been told he has Prinzmetal angina. The examiner stated that the Veteran's cardiologist recently opined that the Veteran's coronary artery spasms cause his occasional chest pain and mild dyspnea. The examiner diagnosed the Veteran with coronary atherosclerosis involving a single vessel, successfully treated with a stent; coronary artery spasm, essential hypertension, hyperlipidemia, obesity, and diabetes mellitus II. The examiner noted that the Veteran's most recent ejection fraction was over 60 percent. An estimated MET level was not provided. In March 2009, the Veteran appeared before the same VA examiner for another VA examination. In addition to restating much of the information in the December 2008 examination, the examiner stated that the Veteran's ejection fraction in March 2006 was 62 percent. He stated that the Veteran was unable to perform the treadmill EKG due to knee pain. The Veteran's workload was only 1.6 METS because of the knee problem. Subsequent to the March 2006 testing, the Veteran had an echocardiogram which showed normal wall motion in the left ventricle with an ejection fraction of over 50 percent. The examiner stated that the Veteran has had single vessel coronary artery disease, successfully treated with a stent, with associated coronary artery spasm. The examiner stated that the Veteran's condition would not significantly restrict his usual activities or sedentary work. An estimated MET level was not provided. Because the examiner failed to provide and estimated MET level in the December 2008 and March 2009 examination report, the examiner was asked to provide an addendum to his examination report discussing MET levels. In December 2009, the examiner reviewed the claims file and stated that the Veteran's activity is primarily restricted by degenerative disease in his knees, his low back disease, and obesity. However, he stated that the Veteran lives on a large rural property and is able to participate in some of the activities there. The examiner stated that the most recent left ventricular ejection fraction measurement was over 60 percent. The examiner stated that in view of the fact that the Veteran has a normal electrocardiogram and a normal ejection fraction, the Veteran's METs level estimate is 5 to 6.0. The Board also considered the lay statement from the Veteran's relative. However, as the statement gives general observations about the Veteran's mental and physical health, and because the Veteran has multiple disabilities that affect his well-being, the Board finds that the statement is not probative of the current issue, the Veteran's coronary artery disease. In light of the evidence discussed above, the Board cannot find that a rating greater than 30 percent for coronary artery disease is warranted at this time. For a 60 percent rating, the evidence must show more than one episode of acute congestive heart failure; a MET level between 3 and 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or an ejection fraction of 30 to 50 percent. As shown, the Veteran's estimated MET level is 5 to 6.0 and his ejection fraction is over 50 percent. There is no evidence that the Veteran has suffered acute congestive heart failure. Therefore, the Board cannot find that a 60 percent rating is warranted at this time. Further, a 100 percent rating is not warranted at this time as the evidence does not show chronic congestive heart failure; a MET level less than 3 resulting in dyspnea, fatigue, angina, dizziness, or syncope; or an ejection fraction of less than 30 percent. The potential application of various provisions of Title 38 of the Code of Federal Regulations has also been considered but the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the Veteran that the service- connected disorder has resulted in marked interference with employment that has not already been taken into consideration with the assignment of the 30 percent rating, or that it has necessitated frequent periods of hospitalization. In the absence of such factors, the Board finds that criteria for submissions for assignment of the extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Finally, in making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. The Veteran may always advance a new claim for an increased rating should his condition increase in severity in the future; however, based on the evidence currently of record, an increased rating is not warranted at this time. The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction, or regional office (RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) rev'd in part by Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in August 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim for an increased rating and of his and VA's respective duties for obtaining evidence. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA and private treatment records. The Veteran submitted private treatment records and a lay statement. The Veteran was afforded a VA medical examination in December 2008 and March 2009 Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a rating in excess of 30 percent for coronary artery disease requiring stent placement is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs