Citation Nr: 1012174	
Decision Date: 04/01/10    Archive Date: 04/14/10

DOCKET NO.  06-32 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUE

Entitlement to an initial compensable evaluation for 
arteriosclerotic heart disease with myocardial infarction 
prior to May 17, 2007, and in excess of 20 percent since 
then.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Joseph R. Keselyak, Counsel




INTRODUCTION

The Veteran served on active duty from April 1968 to 
November 1969.

This matter comes to the Board of Veterans' Appeals (Board) 
from a March 2006 rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Detroit, 
Michigan.  In this rating decision, the RO granted the 
Veteran's claim for service connection for arteriosclerotic 
heart disease with myocardial infarction effective December 
1, 2004, with a 100 percent evaluation until March 1, 2005, 
at which time a noncompensable evaluation was assigned.  In 
a November 2007 supplemental statement of the case the RO 
increased the evaluation of this disability to 20 percent 
effective May 17, 2007.  Because the maximum benefit was not 
granted, the issue of entitlement to a higher evaluation 
remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 
(1993).

It is also noted that the Veteran initially requested a 
Central Office Board hearing.  See October 2006 Substantive 
Appeal.  However, the Veteran later withdrew his request.  
See May 2007 letter from Veteran.  


FINDINGS OF FACT

1.  Prior to May 17, 2007, the Veteran's arteriosclerotic 
heart disease with myocardial infarction required continuous 
medication, but did not manifest by a workload of greater 
than 5 METs but not greater than 7 Mets, which resulted in 
dyspnea, fatigue, angina, dizziness, or syncope; or, by 
evidence of cardiac hypertrophy or dilatation on 
electrocardiogram, echocardiogram, or X-ray.

2.  From May 17, 2007, Veteran's arteriosclerotic heart 
disease with myocardial infarction manifested by a workload 
of less than 5 METs with dyspnea, but not 3 METs or less, or 
chronic congestive heart failure or an ejection fraction 
less than 30 percent.  


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation of 10 percent, 
but no greater, for arteriosclerotic heart disease with 
myocardial infarction prior to May 17, 2007, have been met.  
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 
4.2, 4.7, 4.10, 4.104, Diagnostic Codes 7005, 7006 (2009).

2.  The criteria for an initial evaluation of 60 percent, 
but no greater, for arteriosclerotic heart disease with 
myocardial infarction have been met from May 17, 2007.  38 
U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 
4.7, 4.10, 4.104, Diagnostic Codes 7005, 7006 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

In a case such as this, where service connection has been 
granted and an initial disability rating and effective date 
have been assigned, the typical service connection claim has 
been more than substantiated, it has been proven, thereby 
rendering 38 U.S.C.A. § 5103(a) notice no longer required 
because the purpose that the notice is intended to serve has 
been fulfilled.  Dingess v. Nicholson, 19 Vet. App. 473 
(2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  The 
appellant bears the burden of demonstrating any prejudice 
from defective notice with respect to the downstream 
elements.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  The 
Veteran has not alleged any prejudice; thus that burden has 
not been met in this case.

Nevertheless, the Board notes that VA has fully complied 
with the notice provisions of 38 U.S.C.A. § 5103(a).  In a 
December 2005 letter, the RO advised the Veteran how to 
substantiate his claim for service connection based upon 
aggravation by a service-connected disability, as well as 
his and VA's duties in developing the claim.  In March 2006, 
he was also provided notice as to the disability rating and 
effective date elements of his claim.
The record also shows that VA has obtained the Veteran's 
service treatment records, assisted the Veteran in obtaining 
evidence, and obtained medical examinations as to the 
severity of his disability.  He has provided VA with some 
private evidence to substantiate his claim.  All known and 
available records relevant to the issue on appeal have been 
obtained and associated with the Veteran's claims file; and 
the Veteran has not contended otherwise.

VA has substantially complied with the notice and assistance 
requirements and the Veteran is not prejudiced by a decision 
on the claims at this time.

Laws and Regulations

Disability evaluations are determined by the application of 
a schedule of ratings, which is based on average impairment 
of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 
C.F.R. Part 4 (2009).  Separate rating codes identify the 
various disabilities.  See 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.  38 
C.F.R. § 4.3.  
The evaluation of the same disability under various 
diagnoses is to be avoided. 38 C.F.R. § 4.14.  
Notwithstanding the above, VA is required to provide 
separate evaluations for separate manifestations of the same 
disability which are not duplicative or overlapping.  See 
Esteban v. Brown, 6 Vet. App. 259, 261 (1994).

Where entitlement to compensation has already 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).  However, an appeal from the initial assignment of a 
disability rating, as in this case, requires consideration 
of the entire time period involved, and contemplates "staged 
ratings" where warranted.  See Fenderson v. West, 12 Vet. 
App. 119 (1999).

Initially, the Board notes that service connection was 
granted for arteriosclerotic heart disease on a basis 
secondary to the Veteran's service connected diabetes 
mellitus, particularly through aggravation.  See 38 C.F.R. § 
3.310.  In this regard, it is noted that any increase in 
severity of a nonservice- connected disease or injury that 
is proximately due to or the result of a service-connected 
disease or injury, and not due to the natural progress of 
the nonservice-connected disease, will be service-connected.  
Allen v. Brown, 7 Vet. App. 439 (1995).  In cases of 
aggravation of a veteran's nonservice-connected disability 
by a service-connected disability, such veteran shall be 
compensated for the degree of disability over and above the 
degree of disability existing prior to the aggravation.  Id. 
at 448; see also 38 C.F.R. § 3.322 (2009).  The Board notes 
that 38 C.F.R. § 3.310, the regulation which governs claims 
for secondary service connection, was amended during the 
course of the Veteran's claim and appeal.  The intended 
effect of this amendment was to conform VA regulations to 
the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) 
(codified at 38 C.F.R. § 3.310(b).  However, given the 
possibility that these changes could potentially be 
interpreted as substantive, and because the Veteran's claim 
was pending before the regulatory change was made, the Board 
will apply the version of 38 C.F.R. § 3.310 that was in 
effect before the change, which arguably favors the 
claimant.  Accordingly, the Board will evaluate the 
disability, irrespective of any baseline.  

Also the Board notes that the RO used METs dated in June 
2004 to establish the pre-aggravation baseline; however, the 
diagnosis of Veteran's NIDDM preceded these METs by about 3 
months.  It is therefore apparent to the Board that these 
METs may be unreliable in ascertaining the baseline prior to 
aggravation as they follow the date of the Veteran's 
diagnosis of NIDDM.  In any event, as the Board is applying 
the pre-amendment version of 38 C.F.R. § 3.310, any baseline 
will be disregarded and the secondary condition shall be 
considered a part of the original condition. 

This disability is currently evaluated under 38 C.F.R. § 
4.104 Diagnostic Codes 7005 and 7006.  Under those criteria, 
a 100 percent rating is assigned for three months following 
a myocardial infarction, documented by laboratory tests.  38 
C.F.R. § 4.104 Diagnostic Code 7006.  Thereafter a 10 
percent rating contemplates a workload of greater than 7 
METs but not greater than 10 METs which results in dyspnea, 
fatigue, angina, dizziness, or syncope; or, continuous 
medication required.  38 C.F.R. § 4.104 Diagnostic Codes 
7005 and 7006.  A 30 percent rating is assigned for a 
workload of greater than 5 METs but not greater than 7 METs 
which results in dyspnea, fatigue, angina, dizziness, or 
syncope; or, evidence of cardiac hypertrophy or dilatation 
on electrocardiogram, echocardiogram, or X-ray.  Id.  A 60 
percent rating is assigned where 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 which results in dyspnea, fatigue, angina, dizziness, 
or syncope; or, left ventricular dysfunction with an 
ejection fraction of less than 30 percent to 50 percent.  
Id.  Finally, a 100 percent rating is assigned where there 
is documented coronary artery disease (Diagnostic Code 7005) 
or myocardial infarction (Diagnostic Code 7006) resulting in 
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.  Id.

One MET (metabolic equivalent) is defined as 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 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).

In addition to the preceding rating criteria, and during the 
pendency of the Veteran's appeal, VA revised that portion of 
the Rating Schedule for evaluation of specified 
cardiovascular disorders, to consist of those rated under 
Diagnostic Codes 7000 through 7007, 7011, and 7015 through 
7020 - the revision effective from October 6, 2006.  See 71 
Fed. Reg. 52,459-60 (Sept. 7, 2006); codified at 38 C.F.R. 
4.100.  The revised regulation contains the following new 
provisions: (1)  In all cases, whether or not cardiac 
hypertrophy or dilatation (documented by electrocardiogram, 
echocardiogram, or X-ray) is present and whether or not 
there is a need for continuous medication must be 
ascertained; (2)  Even if the requirement for a 10 percent 
rating (based on the need for continuous medication) or a 30 
percent rating (based on the presence of cardiac hypertrophy 
or dilatation) is met, MET testing is required except when 
there is a medical contraindication, when the left 
ventricular ejection fraction has been measured and is 50 
percent or less, when chronic congestive heart failure is 
present or there has been more than one episode of 
congestive heart failure within the past year, and when a 
100 percent evaluation can be assigned on another basis; and 
(3)  If left ventricular ejection fraction (LVEF) testing is 
not of record, evaluation should be based on alternative 
criteria unless the examiner states that the LVEF test is 
needed in a particular case because the available medical 
information does not sufficiently reflect the severity of 
the veteran's cardiovascular disability.  Id.

It does not appear that the Veteran has been notified of 
this new regulation to date.  However, the Board finds that 
the regulation has the effect of clarifying, rather than 
fundamentally changing, the underlying criteria for 
evaluating heart diseases and the Veteran will thus not be 
prejudiced by a discussion of this regulation in this case.  
See Bernard v. Brown, 4 Vet. App. 384, 394.C.F.R. § 3.114; 
VAOPGCPREC 3- 2000 (Apr. 10, 2000).

Factual Background and Analysis

In November 2000 the Veteran was initially seen by Dr. 
E.L.D. for a cardiac consultation regarding a recent 
positive stress test.  At this time the Veteran described an 
"ache" across his chest and up between his shoulders.  He 
also related having exertional dyspnea and denied a history 
of previous myocardial infarction.  Stress-testing was noted 
as having demonstrated stress-inducted ischemia in the 
inferior wall.  

A November 2000 letter from Dr. E.L.D. notes that the 
Veteran had a history of coronary artery disease at that 
time.  The doctor related that the Veteran required 
continuous treatment for this condition and that it could 
cause considerable discomfort and interference with his 
activity.  Dr. E.L.D. noted that the Veteran had negative 
risk factors for hypertension and diabetes.  

Of record is a November 2000 diagnostic imaging 
communication form.  This form documents a moderate 
reversible defect of the inferior wall compatible with 
ischemia.  It also documents normal wall motion and a normal 
ejection fraction of 61 percent.

In December 2000 the Veteran underwent a coronary artery 
bypass graft (CABG) times four as the result of this 
diagnosis.  A January 2001 follow-up record documents that 
the Veteran obtained regular exercise through his employment 
and denied chest pain or shortness of breath; he did 
acknowledge fatigue, but stated that it was less than what 
he suffered from in the past.  Overall, the Veteran related 
that he was feeling "pretty good" since his CABG.  

In a March 2004 statement the Veteran related that he had 
been recently diagnosed as having diabetes type 2.  He 
claimed service connection for his heart condition at this 
time, as well.

A March 2004 letter from Dr. E.L.D. documents that the 
Veteran was then recently diagnosed as having non-insulin 
dependent diabetes mellitus (NIDDM).  Dr. E.L.D. noted that 
typically this condition took years to manifest to a degree 
that allowed the diagnosis to be made with confidence.  Dr. 
E.L.D. sent a subsequent letter dated in June 2004 
clarifying that the Veteran was diagnosed as having NIDDM on 
March 12, 1004, which was treated with oral medication.

In June 2004 the Veteran was provided a VA examination 
pertaining to his NIDDM.  The examiner that conducted the 
examination noted the Veteran's history of recent diagnosis 
of NIDDM, as well has the aforementioned history of coronary 
artery disease and CABG.  The examiner clinically estimated 
a left ventricular workload of 10 METS, based upon a history 
provided by the Veteran, as well as examination.

In December 2005 the Veteran was afforded a VA heart 
examination.  This examination contains an opinion that the 
Veteran's heart disease was permanently aggravated by his 
NIDDM, based upon the fact that the Veteran had had a 
myocardial infarction (heart attack) since his June 2004 VA 
examination.  The examiner felt that the Veteran's heart 
attack occurring only 5 years following his CABG represented 
an acceleration of his heart disease due to his NIDDM.  At 
this time the examiner clinically estimated that the 
Veteran's METs level was 10.  It was noted that the 
Veteran's condition required continuous medication.  

Of record is a report of stress testing dated May 17, 2007, 
from the Cardiology Consultants of Eastern Michigan, 
apparently following a complaint of chest pain.  METs were 
not apparently obtained at this time, but the records 
document a left ventricle ejection fraction of 70%.  A 
normal left ventricular global systolic function, no wall 
motion abnormalities and inferior ischemia without 
infarction were assessed at this time.  

The Veteran submitted a copy of a treadmill ECG report dated 
July 26, 2007, from the Cardiology Consultants of Eastern 
Michigan.  This report documents that the Veteran 
experienced dyspnea just before reaching 5 METs and chest 
discomfort at between 7 to 10 METs.  The stress test was 
terminated due to fatigue, dyspnea and chest discomfort.  It 
was noted that the Veteran exercised for 7 minutes and 32 
seconds to 8.6 METs.  The summary of the test noted an 
impression of exercise capacity fair to good at 6 to 10 
METs.  

In September 2007 the Veteran was once again provided a VA 
examination in furtherance of substantiating his claim.  It 
was noted that the Veteran brought with him to this 
examination a copy of a recent stress test report.  The 
Veteran reported a history of myocardial infarction sometime 
in 2004-2005.  The examiner noted the absence of a history 
of congestive heart disease, but noted a history of syncope 
weekly, as well as fatigue and angina on a daily basis.  
Also noted was a report of dyspnea on mild exertion.  The 
examiner reviewed the private stress test noted above, dated 
in July 2007, and noted that it showed fair to good exercise 
capacity with METs of 6 to 10.  

In January 2008 Dr. J.L.H. wrote to explain the results of 
the July 2007 stress test noted above.  Dr. J.L.H. noted 
that the Veteran was fatigued during the entire test and 
that he developed dyspnea before 5 METs.  Dr. J.L.H. also 
explained that the Veteran developed chest pain just under 7 
METs and that the test was discontinued because of chest 
pain and fatigue.

Prior to May 17, 2007

As noted above, the Board has found that it is appropriate 
to evaluate this disability irrespective of any baseline 
prior to aggravation.  It is noted in this regard that the 
Veteran was awarded a 100 percent evaluation for 3 months 
following his myocardial infarction.  See 38 C.F.R. § 4.104, 
Diagnostic Code 7006.  The Veteran does not contest this 
evaluation, but rather the evaluation assigned thereafter.  
In this regard the evidence shows that since the onset of 
the Veteran's heart disease that this condition required 
continuous medication.  See e.g. report of December 2005 VA 
examination.  Accordingly, a 10 percent evaluation is 
warranted prior to this time.  

However, an evaluation in excess of 10 percent is not 
warranted prior to May 17, 2005.  The evidence dated prior 
to this date shows a workload of 10 METs, but no lesser, 
that results in dyspnea, fatigue, angina, dizziness or 
syncope.  It does not show evidence of cardiac hypertrophy 
or dilation on an electrocardiogram, echocardiogram, or x-
ray.  Left ventricular dysfunction with an ejection fraction 
of 30 to 50 percent or less than 30 percent was never shown 
and indeed as of this date the Veteran's left ejection 
fraction was 70 percent.  There is no evidence of acute or 
chronic congestive heart failure.  Accordingly, prior to 
this date, an evaluation in excess of 10 percent is not 
warranted.

From May 17, 2007

It is noted that the Veteran apparently sought treatment on 
May 17, 2007, for chest pain; however, not until 
approximately one month thereafter does there appear 
clinical evidence indicating an increase in the severity of 
the Veteran's disability as defined by the applicable rating 
criteria.  In affording the Veteran the benefit of the 
doubt, the Board finds that an evaluation of 60 percent, but 
no greater, is warranted.  The Board notes that the ECG 
report dated July 26, 2007, documents that the Veteran 
experienced dyspnea before reaching 5 METs and chest 
discomfort just prior to reaching 7 METs.  The rating 
criteria provided for a 60 percent evaluation when there is 
a workload of greater than 3 METs but not greater than 5, 
resulting in dyspnea, fatigue or angina.  Although Dr. 
J.L.H. has related that the Veteran was fatigued during the 
entire test, the Board notes that the ECG report documents 
fair to good exercise capacity.  Accordingly, the Board 
finds a 60 percent, but no greater evaluation is warranted.

In order to establish the maximum 100 percent evaluation, 
there must be evidence of chronic congestive heart failure, 
a workload of 3 METs or less resulting in dyspnea, fatigue, 
angina, dizziness or syncope, or an ejection fraction of 
less than 30 percent.  As noted above, the Board notes Dr. 
J.L.H.'s statement that the Veteran was "fatigued" during 
the entire June 2007 stress test, but notes that the 
clinical report associated therewith contains no such 
findings.  In fact, as noted, the report documents fair to 
good exercise capacity.  As is true with any piece of 
evidence, the credibility and weight to be attached to this 
opinion are within the province of the Board as 
adjudicators.  See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 
1997).  In this instance, the Board finds the more 
contemporaneous clinical findings noted at the time of the 
stress test to be the more credible and persuasive evidence.  
Otherwise, there is no evidence of congestive heart failure 
or METs to a level required for a 100 percent evaluation.  

Other Rating Matters

Consideration is given to whether the Veteran's service-
connected heart disability could be appropriately rated 
under other Diagnostic Codes in order to provide him with 
the most beneficial rating.  Several of the Diagnostic Codes 
pertaining to disabilities of the cardiovascular system 
utilize essentially the same criteria and thus would not 
provide a higher disability rating for the Veteran. 38 
C.F.R. § 4.104, Diagnostic Codes 7000-7004 and 7007.  In 
addition, there is no evidence that the Veteran has 
hyperthyroid heart disease or arrhythmias or has undergone 
heart surgery during an applicable period that would provide 
him with a higher disability rating under another code.  38 
C.F.R. § 4.104, Diagnostic Codes 7008-7020.  It is noted in 
this regard that the Veteran was provided a 3 month 100 
percent evaluation, apparently for his myocardial 
infarction.  The Veteran had a CABG in December 2000, 
several years prior to the date that he filed his claim and 
to the onset of aggravation; therefore, consideration of 
Diagnostic Code 7017 is not warranted.  Id.  The assignment 
of a particular diagnostic code is "completely dependent on 
the facts of a particular case."  See Butts v. Brown, 5 Vet. 
App. 532, 538 (1993).

The Board has also considered whether the Veteran's 
disability presents an exceptional or unusual disability 
picture as to render impractical the application of the 
regular schedular standards such that referral to the 
appropriate officials for consideration of an extra-
schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1) 
(2009); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  
The threshold factor for extraschedular consideration is a 
finding that the evidence before VA presents such an 
exceptional disability picture that the available schedular 
evaluations for that service-connected disability are 
inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 
(1993) ("[R]ating schedule will apply unless there are 
'exceptional or unusual' factors which render application of 
the schedule impractical.").  Here, the rating criteria 
reasonably describe the Veteran's disability level and 
symptomatology; thus, his disability picture is contemplated 
by the rating schedule, and the assigned schedular 
evaluations are, therefore, adequate.  See Thun v. Peake, 22 
Vet. App. 111, 115 (2008).  Consequently, referral for 
extraschedular consideration is not warranted.


ORDER

Entitlement to an initial evaluation of 10 percent, but no 
greater, for arteriosclerotic heart disease with myocardial 
infarction prior to May 17, 2007, is granted.

Entitlement to an initial evaluation of 60 percent, but no 
greater, for arteriosclerotic heart disease with myocardial 
infarction is granted effective May 17, 2007.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs