Citation Nr: 1108652 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 09-15 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for coronary artery disease, status post myocardial infarction, from November 1, 2006, through February 12, 2007. 2. Entitlement to an evaluation in excess of 30 percent for coronary artery disease, status post myocardial infarction, as of February 13, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to January 1971, and from June 1971 to December 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to an evaluation in excess of 30 percent for coronary artery disease, status post myocardial infarction, as of February 13, 2007, 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. FINDING OF FACT From November 1, 2006, to February 12, 2007, coronary artery disease, status post myocardial infarction, was not manifested by more than one episode of acute congestive heart failure in the past year or workload of greater than 3 metabolic equivalents but not greater than 5 metabolic equivalents resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction of 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, status post myocardial infarction, between November 1, 2006, through February 12, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104a, Diagnostic Code 7005 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2006 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, notice of what part VA will attempt to obtain and how VA determines the disability rating and effective date. He was provided notice of the specific rating criteria used to evaluate hypertensive arteriosclerotic heart disease in August 2008 correspondence. The claim was readjudicated in the March 2009 statement of the case. Thus, any timing error as to notice of the specific rating criteria was cured and rendered nonprejudicial. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). 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 a VA examination. The appellant was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Analysis Service connection for hypertension was awarded in an August 1980 rating decision and assigned a noncompensable evaluation. In June 1981, VA granted a 10 percent evaluation for hypertension. In August 2004, VA awarded service connection for coronary artery disease, status post myocardial infarction, which had been found to be related to the service-connected hypertension. VA assigned a 30 percent evaluation, effective September 1, 2004. In September 2006, the Veteran submitted the current claim for increase, stating he was currently in the hospital for atrial fibrillation. He stated he was hospitalized from September 7, 2006, to September 12, 2006. In a November 2006 letter, Dr. DJG stated the Veteran needed at least 30 days of convalescence following his hospitalization in September 2006. In a February 2007 rating decision, the RO granted a temporary 100 percent evaluation under the provisions of 38 C.F.R. § 4.30 (2010) from September 11, 2006, through October 31, 2006. He was assigned a 30 percent evaluation as of November 1, 2006, with the intent to provide the Veteran with an examination to determine the current level of severity of the service-connected coronary artery disease, status post myocardial infarction. That examination was provided on February 12, 2007. The Veteran's disability evaluation is rated under Diagnostic Code 7005-7006. Both Diagnostic Codes have the same rating criteria. Under 38 C.F.R. § 4.104, Diagnostic Code 7005, a 60 percent rating is assigned when coronary artery disease causes more than one episode of acute congestive heart failure in the past year, or; when a workload greater than 3 metabolic equivalents but not greater than 5 metabolic equivalents results in dyspnea, fatigue, angina, dizziness, or syncope, or; when left ventricular dysfunction with an ejection fraction of 30 to 50 percent is shown. One metabolic equivalent (MET) 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 metabolic equivalents at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of metabolic equivalent by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in metabolic equivalents 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). Initially, the Board notes that it is not addressing the period from September 11 to October 31, 2006, because the Veteran was in receipt of a temporary total evaluation, which is the maximum evaluation available. Thus, a higher evaluation would not be available for that period of time. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent from November 1, 2006, through February 12, 2007 (the day of the VA examination). Specifically, the evidence does not show that the Veteran met the criteria for a 60 percent evaluation under Diagnostic Code 7005 during this time period. For example, in a November 2006 letter from the doctor who treated the Veteran in September 2006, he stated the Veteran continued to have symptoms of lightheadedness and diaphoresis. There was no indication, however, that the Veteran had had acute congestive heart failure in the prior year. Dr. DJG made no assessments as to the Veteran's metabolic equivalents or ejection fraction. In the February 2007 VA examination report, the examiner noted the Veteran's diagnosis of atrial fibrillation in September 2006, but that a November 2006 EKG showed 61 beats per minute, which meant there was no atrial fibrillation. At the time of the examination, the Veteran's heart had a regular rate and rhythm. His pulse was 74 beats per minute and was regular. The examiner estimated that the Veteran's current metabolic equivalents was 7.5 based upon the Veteran's current activities. The Veteran reported he was fully independent and drove. He stated he walked three miles a day for exercise. The EKG done on the day of examination showed a normal sinus rhythm and an old inferior wall myocardial infarction. This is evidence against a finding of any recent congestive heart failure. Additionally, metabolic equivalents of 7.5 do not warrant a 60 percent evaluation. The Board acknowledges that Dr. DJG stated in November 2006 that there appeared to be "some progression" of the coronary disease since the work-up the Veteran underwent in 2004. This statement does not, however, change the outcome for two reasons. One, the physician noted he did not have the records from the Veteran's cardiac work-up in 2004. Two, even if this statement is true, the clinical findings made in the February 2007 establish that an evaluation in excess of 30 percent is not warranted. Additionally, it must be noted that within the 30 percent evaluation are different levels of severity. The claimant could have as high as 7 METS and as low as 5 METs. In this case, the Veteran showed 7.5 METs, i.e., cardiac function that was better than the degree of disability expected with a 30 percent rating. The symptoms presented by the claimant's coronary artery disease, status post myocardial infarction, between November 1, 2006, through February 12, 2007, were 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 this disorder at any time during the appellate term necessitated frequent hospitalization (he was hospitalized once prior to February 12, 2007), or that this disability alone caused a marked interference with employment. Thus, the Board finds no evidence to indicate referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). The claim for increase is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 30 percent for coronary artery disease, status post myocardial infarction, between November 1, 2006, through February 12, 2007, is denied. REMAND The Veteran has stated he should be provided with a more recent VA examination. The Board agrees. Following the February 2007 VA examination, the Veteran wrote to VA in March 2007, stating he had been to two different hospitals during that month and had been hospitalized again for his heart disorder. A more recent VA examination should have been provided prior to the case coming to Board. Additionally, the Veteran reported receiving treatment from two different facilities and undergoing a stress test, a cardiac catheterization, and an electrocardiogram during the month of March 2007. An attempt to obtain these records and any other outstanding records must be made. Accordingly, the case is REMANDED for the following action: 1. The RO should write to the Veteran and ask him to provide VA with written authorization to obtain any outstanding private medical records pertaining to heart treatment beginning in March 2007, including, but not limited to, at St. Francis Hospital in Wilmington, Delaware; Jefferson Regional Medical Center in Pittsburgh, Pennsylvania; the Veteran's private cardiologist, and any other private doctor/facility. 2. Once the additional records are received, the RO should schedule the Veteran for cardiology examination with a physician to determine the current level of severity of the service-connected coronary artery disease, status post myocardial infarction. The claims file must be made available to the examiner in conjunction with the examination. The physician is to determine the workload the appellant's heart can perform without dyspnea, fatigue, angina, dizziness or syncope. The examiner must report any evidence of left ventricular dysfunction and the appellant's ejection fraction. The VA examiner must append a copy of his/her curriculum vitae to the examination report. 3. The RO should review the examination report and medical opinion to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). 5. Thereafter, the RO should readjudicate the claim for entitlement to an evaluation in excess of 30 percent for coronary artery disease, status post myocardial infarction, since February 12, 2007. If the benefit is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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. 2010). ________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs