Citation Nr: 1120622 Decision Date: 05/26/11 Archive Date: 06/06/11 DOCKET NO. 06-01 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a rating in excess of 10 percent for coronary artery disease (CAD) associated with hypertension, prior to September 1, 2009, on a schedular basis. 2. Entitlement to a rating in excess of 60 percent for CAD, since September 1, 2009, on a schedular basis. 3. Entitlement to a rating in excess of 10 percent for CAD associated with hypertension, prior to September 1, 2009, on an extraschedular basis. 4. Entitlement to a rating in excess of 60 percent for CAD, since September 1, 2009, on an extraschedular basis. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. M. Clark, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to February 1973. These matters come before the Board of Veterans' Appeals (BVA or Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Detroit, Michigan. This case was previously before the Board in November 2009, when the increased rating claims were remanded for further evidentiary and procedural development. The RO was instructed to obtain additional VA clinical records, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected CAD, and issue a supplemental statement of the case. The Board concludes that the development set forth in the November 2009 Remand has been accomplished and therefore finds that it may proceed with a decision at this time. The issue of TDIU 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. Prior to September 1, 2009, the Veteran's service-connected CAD was not shown to have been productive of a workload of less than 7 metabolic equivalents (METs) resulting in dyspnea, fatigue, angina, dizziness, or syncope; evidence of congestive heart failure; left ventricular dysfunction with an ejection fraction of less than 50 percent; and/or cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray was not demonstrated. 2. From September 1, 2009, the Veteran's CAD is not shown to have been manifested by chronic congestive heart failure, 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. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for CAD associated with hypertension, prior to September 1, 2009, on a schedular basis, were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 4.104, Diagnostic Code (DC) 7005 (2010). 2. The criteria for a rating in excess of 60 percent for CAD associated with hypertension, since September 1, 2009, on a schedular basis, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.159, 4.104, DC 7005 (2010). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran's increased rating claim for CAD arise from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the VA treatment records. Moreover, the Veteran has submitted private treatment records. There is no indication that the Veteran is in receipt of benefits from the Social Security Administration (SSA). Next, the Veteran was afforded VA examinations in March 2005, March 2007 and March 2010. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's disability since the March 2010 VA examination. The Board has considered a May 2011 Written Brief Presentation submitted on behalf of the Veteran, which indicates that the Veteran's current rating does not reflect the current severity level of his disability. The statement indicates that the Veteran should be afforded another VA examination to determine if there had been any changes in his disability. Significantly, the Veteran did not argue that his service-connected CAD had worsened in severity since the last VA examination. Moreover, the Board finds the above VA examination reports to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria. Accordingly, the Board finds that VA's duty to assist, with respect to obtaining a VA examination with respect to the issues on appeal, has been met. 38 C.F.R. § 3.159(c)(4). Therefore, the available records and medical evidence have been obtained in order to make adequate determinations as to these claims. Hence, no further notice or assistance 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). II. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2010). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2010). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2010). At the outset, the Board notes that the Veteran is appealing the initial disability ratings assigned for his CAD. As such, the claims require consideration of the entire time period involved, and contemplate staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran is rated at 10 percent for his CAD prior to September 1, 2009, and at 60 percent since September 1, 2009, under Diagnostic Code (DC) 7005 for arteriosclerotic heart disease (CAD). Under this code, a 30 percent rating is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year; or when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The maximum schedular rating of 100 percent is warranted for chronic congestive heart failure; or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. 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). Prior to September 1, 2009 The Veteran is in receipt of a 10 percent disability rating for his CAD prior to September 1, 2009. In order to warrant the next higher 30 percent rating the evidence must demonstrate CAD resulting in workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A March 2005 VA examination reflected that the Veteran had been diagnosed with CAD on cardiac catheterization in July 2002. The VA examiner noted that the Veteran was currently working and was able to walk greater than 15 minutes of duration without chest pain. He estimated the level of activity that results in dyspnea, fatigue, angina, dizziness, or syncope to be 10 METs. The VA examiner noted that a recently conducted chemical nuclear stress test was normal with ejection fraction of 81%. At an August 2006 VA treatment visit the Veteran reported that a private practitioner had estimated his METs to be 8; his wife reported that his ejection fraction had been 80%. A March 2007 VA examination report once again references the private nuclear stress test the Veteran underwent in 2004 which reflected an ejection fraction of 81%. The Veteran reported that while working he experienced fatigue and shortness of breath that is mild and occurs primarily with moderate strenuous exertion. The Veteran denied palpitations or a history of heart murmur. The VA examiner estimated his METs to be between 10 and 12. It was noted that an electrocardiogram (EKG) reflected normal sinus rhythm when compared with a June 2002 ECG. The Veteran was diagnosed with coronary artery disease status post 5 stents. An April 2007 VA treatment record reflects an ejection fraction of 66. A September 2007 VA treatment record noted no evidence of inducible ischemia on dobutamine echo. A September 2008 X-ray report reflected no acute cardiopulmonary disease and a stable borderline heart size. In light of above, the competent and other medical evidence of record fails to reflect that the Veteran's CAD symptomatology meets the criteria for an increased evaluation. Specifically, the record does not reflect CAD resulting in 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. Likewise, the evidence does not show an ejection fraction of 50 percent or less as contemplated by higher disability ratings. Based on this evidence, the Board finds that a rating in excess of 10 percent, prior to September 1, 2009 is not warranted. Since September 1, 2009 As noted above, the Veteran is in receipt of a 60 percent disability rating for his CAD since September 1, 2009. Based on a review of the record, the Board finds that a rating in excess of 60 percent for his CAD is not warranted since September 1, 2009. A September 2009 VA treatment record reflected that the Veteran's functional status was 4 METs. At a March 2010 VA examination the Veteran reported no history of hypertensive heart disease, heart rhythm disturbance, congestive heart failure or other heart disease. He provided a positive history for myocardial infarction, hypertension, valvular heart disease including prosthetic valve and dyspnea. There was no evidence of congestive heart failure. The VA examiner estimated the level of activity that results in dyspnea, fatigue, angina, dizziness, or syncope to be 5 METs. It was noted that an echocardiogram reflected a larger than normal heart size. He was diagnosed with mild cardiomegaly on chest X-ray from December 2009 and mild left ventricular hypertrophy on ECHO in December 2009. The Veteran's ejection fraction was recorded as 60 based on December 2009 testing. A March 2010 VA treatment record reflects an ejection fraction of 60-65. To warrant the next higher 100 percent rating the evidence must demonstrate CAD resulting in chronic congestive heart failure; or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. However, in light of above, the competent and other medical evidence of record fails to reflect that the Veteran's CAD symptomatology meets the criteria for a 100 percent evaluation. Specifically, the record does not reflect CAD resulting in chronic congestive heart failure; or workload of 3 METs, or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or for left ventricular dysfunction with an ejection fraction of less than 30 percent. Based on this evidence, the Board finds that a rating in excess of 60 percent, since September 1, 2009 is not warranted. The Board has also considered the statements of the Veteran that his disability is worse. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses such as fatigue, shortness of breath, and chest pain. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of this disorder-according to the appropriate diagnostic codes. Such competent evidence-concerning the nature and extent of the Veteran's CAD -has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluation. The medical findings (as provided in the examination report) directly address the criteria under which this disability is evaluated. Based on the evidence above, the Board finds that a rating in excess of 10 percent for CAD, prior to September 1, 2009, or a rating in excess of 60 percent for CAD, since September 1, 2009, on a schedular basis, is not warranted. ORDER A rating in excess of 10 percent for CAD associated with hypertension, prior to September 1, 2009, on a schedular basis, is denied. A rating in excess of 60 percent for CAD, since September 1, 2009, on a schedular basis, is denied. REMAND As indicated previously, the VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. VA's duty to assist also includes a duty to provide a medical examination or obtain a medical opinion when it is deemed necessary to make a decision on the claim. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, the Veteran reported at his March 2010 VA examination that he had retired from his job in 2009 due to medical issues including joint problems, heart problems, and prostate cancer. The Board finds that the issue of TDIU has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased-rating claim pursuant to Rice. Having determined that the issue of TDIU is properly raised by the record, the Board finds that further development is necessary prior to adjudicating the claim. In this regard, the law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). As an initial matter, the Board acknowledges that the Veteran is currently service connected for CAD (10 percent prior to September 1, 2006, and 60 percent since September 1, 2009), residuals of prostate cancer (40 percent prior to October 1, 2006, and 20 percent since October 1, 2006), hypertension (10 percent), and erectile dysfunction associated with CAD (noncompensable). As such, he currently has a combined rating of 70 percent. As one of his disabilities is rated at 60 percent or more, the Veteran thus meets the schedular requirements of 38 C.F.R. § 4.16 (a). Given the evidence of record demonstrating that the Veteran may be unemployable as a result of his service connected disabilities, the Board has little choice but to Remand this matter to afford the Veteran a VA examination. The Board also notes that the Veteran has not received notice pursuant to the VCAA as it pertains to his claim for TDIU. As such, the RO should additionally provide the Veteran with adequate notice under the VCAA. Finally, the Board finds that the Veteran's claims for entitlement to a rating in excess of 10 percent for CAD associated with hypertension, prior to September 1, 2009 and entitlement to a rating in excess of 60 percent for CAD, since September 1, 2009, on an extraschedular basis, are inextricably intertwined with his claim for TDIU. Evidence gleaned from the development of the Veteran's TDIU claim may be germane to the assignment of an extraschedular rating for his CAD. Therefore, the issues will be held in abeyance pending completion of the development discussed below. See Hoyer v. Derwinski, 1 Vet. App. 208, 209-10 (1991). Accordingly, the case is REMANDED for the following actions: 1. Review the claims file and ensure that all notification and development action, required by the VCAA is completed. In particular, the RO should ensure that notification is provided regarding requirements and development procedures necessary to substantiate a claim for TDIU. 2. The Veteran should be afforded a VA examination with opinion to determine whether he is unemployable solely due to his service-connected disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should be requested to review all pertinent records associated with the claims file and to comment on the effect of the Veteran's service-connected disabilities on his ability to engage in any type of full-time employment and whether, in the examiner's opinion, the service-connected disabilities alone are of such severity to result in unemployability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important 'that each disability be viewed in relation to its history[,]' 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. The examiner should explain the rationale for any opinion given regarding the effect of the Veteran's service-connected conditions on his ability to obtain or maintain employment, to include discussion of obstacles and challenges he might face, and his capability for performing sedentary employment in light of his past employment experience. The examiner should note that consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. 3. Upon completion of the above, readjudicate the issues on appeal. The RO/AMC must consider whether the Veteran's claims for an increased rating for CAD should be referred to the Under Secretary for Benefits or to the Director of the Compensation and Pension Service, pursuant to 38 C.F.R. § 3.321(b), for assignment of an extraschedular rating. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. 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. 2010). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs