Citation Nr: 1031255 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 04-37 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE What evaluation is warranted for coronary artery disease with hypertension, status post coronary artery bypass graft from June 20, 2006? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active military service from August 1981 to April 2003. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that granted service connection and a 10 percent rating for the Veteran's coronary artery disease with hypertension, status post coronary artery bypass graft, effective from May 1, 2003. In February 2008, the Veteran testified at a travel Board hearing. In April 2008, the Board remanded the case to the RO for further development. In a July 2008 rating decision, the RO awarded a 30 percent evaluation for the Veteran's service-connected heart disability, effective from June 10, 2008. In January 2009, the Board denied an initial rating in excess of 10 percent from May 1, 2003 to June 19, 2006 for the disability; granted a 30 percent rating from June 20, 2006; and denied a separate compensable rating for hypertension. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a joint motion for partial remand, vacating the Board's January 2, 2009 decision with regard to the determinations that a rating in excess of 30 percent was not warranted from June 20, 2006 and that the Veteran was not entitled to a separate compensable rating for hypertension. Those issues were remanded for additional proceedings. The Court also noted that the Board's determination that an initial rating in excess of 10 percent from May 1, 2003 to June 19, 2006 for the heart disability was not subject to the remand. As such, the April 2007 Board decision denying an initial evaluation in excess of 10 percent from May 1, 2003 to June 19, 2006 for the service- connected heart disability is final. 38 U.S.C.A. § 7104 (West 2002). The issue of an initial evaluation in excess of 30 percent for coronary artery disease with hypertension, status post coronary artery bypass graft, from June 10, 2008, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From June 20, 2006 to December 7, 2006, the Veteran's coronary artery disease was manifested by a workload of 4.5 METs, resulting in fatigue, dizziness and shortness of breath. 2. From December 8, 2006 to June 9, 2008, the Veteran's coronary artery disease was not manifested by objective evidence of more than one episode of acute congestive heart failure in any twelve month period, the appellant could perform a workload greater than 5 METs, and there was no left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 3. Since May 1, 2003, the Veteran's hypertension has not been manifested by a diastolic pressure that is predominantly 100 or greater, or by systolic pressure that is predominantly 160 or greater, and there is no history of the appellant having a diastolic pressure of 100 or more that required continuous medication to maintain control. CONCLUSIONS OF LAW 1. From June 20, 2006 to December 7, 2006, the criteria for a rating of 60 percent for coronary artery disease with hypertension, status post coronary artery bypass graft, were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.104, Diagnostic Codes 7005, 7017 (2009). 2. From December 8, 2006 to June 9, 2008, Veteran's coronary artery disease with hypertension, status post coronary artery bypass graft, did not meet the criteria for an evaluation greater than 30 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.104, Diagnostic Codes 7005, 7017. 3. Since May 1, 2003, the criteria for a compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 4.7, 4.104, Diagnostic Code 7101 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. He was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159 (c). Rating Criteria Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the 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. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). As noted above, the RO evaluated the Veteran's heart disability as 10 percent disabling prior to June 10, 2008 and as 30 percent disabling thereafter. In January 2009, the Board denied an initial rating in excess of 10 percent from May 1, 2003 to June 19, 2006. The issue of an initial evaluation in excess of 30 percent from June 20, 2006 remains on appeal. The Veteran's coronary artery disease with hypertension, status post coronary artery bypass graft, has been rated under Diagnostic Code 7017, 38 C.F.R. § 4.104 (2009). The Veteran's heart disability may also be evaluated under Diagnostic Code 7005, for arteriosclerotic heart disease or coronary artery disease. The criteria for Diagnostic Code 7005 and Diagnostic Code 7017 are identical. Id. A 30 percent rating contemplates 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 evaluation for coronary artery disease is warranted when there is evidence of 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. Id. A 100 percent evaluation is warranted when there is evidence of 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, Diagnostic Codes 7005, 7017 (2009). 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 (2009). 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). A 10 percent rating is warranted for hypertensive vascular disease (hypertension and isolated systolic hypertension) where diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or where the an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. A 20 percent rating requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. When the requirements for a compensable rating of a diagnostic code are not shown, a noncompensable rating is assigned. 38 C.F.R. § 4.31 Factual Background The record reflects that in 1998, while in service, the Veteran underwent two-vessel coronary artery bypass grafting due to coronary artery. While on active duty in March 2001, the appellant was found to show resting elevated blood pressure readings in the 160-170 systolic range despite the use of medication. Through written statements and hearing testimony, the Veteran has reported that he has experienced chest pain and fatigue, and that he takes prescribed medication to control his high blood pressure. He contends that a compensable evaluation is warranted for his hypertension because he continually takes medication for treatment of the disorder and if he did not take medication, his blood pressure would be elevated. On VA examination in May 2003, blood pressure readings of 110/80, 114/70 and 120/78 were recorded. On VA examination in October 2004, blood pressure readings of 112/78, 110/76 and 114/78 were recorded. Records from Bremerton Naval Hospital show the following blood pressure readings: 112/66 in October 2003; 122/70 in December 2003; 130/60 in January 2004; 126/78 in February 2004; 130/80 and 110/74 in October 2004; 110/72 in November 2004; 120/70 in June 2005; 110/70 in August 2005; 130/78 in January 2006; and 120/70 in March 2006. On June 20, 2006, VA afforded the Veteran a medical examination performed by Marc Suffis, M.D. The Veteran complained of shortness of breath, dizziness, chest pain, and easy fatigue. His blood pressure readings were 156/97, 164/98, and 144/82. He took prescribed medication to control his blood pressure. Results of an electrocardiogram performed at the time showed a normal sinus rhythm and a non- specific ST depression. An echocardiogram showed hypokinesis of the posterior and lateral wall. The estimated METs level was 4.5 and an ejection fraction of 45 percent was noted. In October 2006, Dr. Suffis re-examined the Veteran for VA. The Veteran complained of constant shortness of breath and fatigue with physical activity. He denied congestive heart failure. His functional impairment was difficulty with exercise. The Veteran's blood pressure readings were 136/84, 133/75 and 147/80. Examination of his heart revealed a regular sinus rhythm with no murmurs or gallops with no evidence of congestive heart failure, cardiomegaly, or cor pulmonale. There was no edema in the extremities. Results of a chest-x-ray showed evidence of previous coronary surgery with slight cardiac prominence. Dr. Suffis said a treadmill stress test was not indicated and noted the Veteran's subjective complaints of exertional chest pain. Results of a thallium stress test performed on December 8, 2006 revealed findings suggestive of anteriolateral ischemia. The estimated METs level was 10.1, and the ejection fraction was normal at 57 percent. A cardiology follow up was recommended. Records from Madigan Army Medical Center show that in May 2007, the Veteran was seen for complaints of shortness of breath and slight chest pain that developed while the Veteran exercised on a treadmill. He was reassured that his stress test was normal. Cardiac catherization testing was offered that he declined. A beta-blocker was prescribed. A blood pressure reading of 121/49 was recorded. The Veteran submitted a June 2007 written statement from Kristine Ewing, M.D., who said she treated the Veteran regularly since 2005, for hypertension and coronary artery disease that were currently relatively well-controlled. Dr. Ewing noted that the Veteran was extensively worked up for chest pain that started in January 2006, he was seen in two different cardiology clinics (at Bremerton Naval Hospital and Madigan Army Medical Center) and underwent two stress nuclear studies (at Bremerton and by VA report), both of which were negative. She said the Veteran was counseled about the option of cardiac catheterization but declined. Dr. Ewing's working diagnosis was costochondritis that she suspected would be a chronic, albeit, a waxing and waning problem. During his June 2007 personal hearing at the RO, the Veteran testified that he became tired and fatigued during the stress test performed during his recent VA examination. He reported that, approximately six months earlier, he became so fatigued he had to stop exercising. The Veteran indicated that he was treated at Madigan Army Medical Center and a physician advised that he have stents inserted in an artery, but he refused. He denied losing any time from work as a postal carrier. Treatment records from Bremerton Naval Hospital, dated in August 2007 and January 2008, indicate that the Veteran was treated for chest pain. In January 2008, it was noted that the Veteran's symptoms lasted for two minutes or less and immediately resolved and there was no suggestion that his coronary artery disease worsened. The records show the following blood pressure readings: 151/64 in August 2007; and 130/76 and 154/80 in January 2008. During his February 2008 Board hearing, the Veteran testified that, during the past year and one half, he experienced shortness of breath while exercising on a treadmill, with chest pain, and fatigue. He said physicians increased the dosage of his prescribed blood pressure medication. On VA examination in June 2008, blood pressure readings of 126/82, 128/80 and 120/80 were recorded. Analysis Pursuant to the directive in the joint motion for remand, the Board has been instructed to provide more substantial reasons and bases for its decision. Specifically, the Board was instructed to address whether the Veteran's heart disability warranted a rating in excess of 30 percent from June 2006 to December 2006. The Board was also instructed to address whether the Veteran's is entitled to a separate compensable rating for hypertension. In reviewing the evidence of record, the Board finds that an initial evaluation of 60 percent, but not greater, is warranted for the Veteran's coronary artery disease from June 20, 2006 to December 7, 2006. It is reasonably shown that during this period the Veteran has experienced continuous fatigue, dizziness, and shortness of breath. Significantly, in the June 20, 2006 VA examination, clinical findings included an estimated METs level of 4.5. Moreover, on VA examination in October 2006, the Veteran continued to report fatigue and shortness of breath with physical activity. This disability picture meets the schedular criteria warranted for a 60 percent rating. The Board has also further considered whether a still higher (100 percent) schedular rating might be warranted. Inasmuch as chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent has not been shown at any time from June 20, 2006 to December 7, 2006, the Board concludes that a further increase in the schedular rating (to 100 percent) is not warranted. The objective medical evidence of record, however, preponderates against a rating in excess of 30 percent from December 8, 2006 to June 9, 2008. Although the Veteran continued to complain of shortness of breath, fatigue and chest pain, stress nuclear studies conducted during this period were negative. Significantly, results of a thallium stress test performed on December 8, 2006 revealed an estimated METs level of 10.1 and an ejection fraction of 57 percent. There is simply no medical evidence that the Veteran has ever had more than one episode of acute congestive heart failure (CHF) at any time during this period. Likewise, he has never been shown to have a workload less than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; a left ventricular dysfunction with an ejection fraction of 30 to 50 percent as would warrant a higher 60 percent evaluation. In assigning a 30 percent rating from December 8, 2006 to June 9, 2008, the Board notes that neither 38 U.S.C.A. § 5112(b)(6) nor 38 C.F.R. § 3.105(e) apply in the context of the assignment of a staged rating by the Board where the Veteran's disability rating is not reduced, for any period of time, to a level below that which was in effect when the matter was appealed to the Board. See O'Connell v. Nicholson, 21 Vet. App. 89 (2007). The preponderance of the evidence is also against assigning an initial compensable rating for hypertension. It is the Veteran's primary contention on appeal that his hypertension requires daily use of medication for its control. The Board concedes that the appellant does require medication to control his blood pressure. Significantly, however, to warrant a compensable evaluation the law requires that either diastolic pressure be predominately 100 or greater, or that systolic pressure be predominately 160 or greater, and a careful review of the evidence shows that neither of these signs has been shown since service connection was granted effective May 1, 2003. The single blood pressure reading of 164/98 on VA examination in June 2006 is not sufficient to conclude that the appellant's systolic pressure is consistently 160 or greater. The Board also looked through the Veteran's service medical records to determine whether those records showed "a history of diastolic pressure predominantly 100 or more" and that required continuous medication for control. While it is true that the appellant showed persistent elevated systolic readings of 160 or greater in-service, and while he needed antihypertensive medication while on active duty, the preponderance of the evidence is against finding that the appellant has ever showed, either in-service or post service, a history of diastolic pressure that was predominantly 100 or more. Hence, there is no basis to award a compensable evaluation under 38 C.F.R. § 4.104, Diagnostic Code 7101. The symptoms presented by the Veteran's heart disability are fully contemplated by the rating schedule. There is no evidence his disability picture is exceptional when compared to other Veterans with the same or similar disability. There is no evidence that the claimant's heart disability at any time during the appellate term necessitated frequent hospitalization, or that either disability has caused a marked interference with employment. Thus, the Board finds no evidence to indicate entitlement to referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER From June 20, 2006 to December 7, 2006, a 60 percent evaluation is granted for coronary artery disease with hypertension, status post coronary artery bypass graft, subject to the laws and regulations governing the award of monetary benefits. From December 8, 2006 to June 9, 2008, an evaluation greater than 30 percent is not warranted for coronary artery disease with hypertension, status post coronary artery bypass graft. From May 1, 2003, a separate compensable evaluation is not warranted for hypertension. REMAND The Board finds that further development is warranted with respect to whether an initial evaluation in excess of 30 percent is warranted for coronary artery disease with hypertension, status post coronary artery bypass graft, from June 10, 2008. The Board notes that the June 10, 2008 VA examination findings include severe dyspnea, but the Veteran's left ventricular ejection fraction was 45 to 55 percent and his estimated METs workload was 6 to7. Findings from a June 2008 echocardiogram, however, indicated that it was an abnormal echocardiogram with hypokinesis and mild diastolic dysfunction of the left ventricle with a left ventricular ejection fraction of 45-50%. Thus, it is not clear if the June 2008 echocardiogram shows evidence of left ventricular dysfunction and further clarification from the June 2008 VA examiner is warranted. The Board also concludes that the Veteran should be scheduled for a current VA heart examination. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a VA heart examination to be conducted by a physician to determine the nature and severity of the Veteran's service-connected coronary artery disease with hypertension, status post coronary artery bypass graft. The claims file and a copy of this REMAND must be made available to the examiner. In accordance with the latest AMIE worksheets for coronary artery disease, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. The examiner is to review the June 2008 echocardiogram report and determined whether the findings in the echocardiogram are consistent with left ventricular dysfunction. If so, provide a rationale. If not, provide a rationale. VA examiner must append a copy of their curriculum vitae to the examination report. 2. The RO should review the medical examination report to ensure that it is in complete compliance with the directives of this remand. If it is deficient in any manner, the RO must implement corrective procedures at once. 3. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2009). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested above has been completed to the extent possible, the RO should again review the record and adjudicate the claim on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before this case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs