Citation Nr: 1127652	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  10-26 405	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for coronary artery disease.  

2.  Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 10 percent disabling.  


ATTORNEY FOR THE BOARD

M. Tenner, Counsel



INTRODUCTION

The Veteran served on active duty from September 1968 to June 1971.  

In a January 2005 decision, the RO granted service connection for PTSD.  An initial 10 percent disability rating was assigned.  The Veteran did not appeal that determination.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 decision rendered by the Louisville, Kentucky Regional Office (RO) of the Department of Veterans Affairs (VA).  In that decision, the RO granted service connection for coronary artery disease and assigned an initial 10 percent disability rating.  In addition, the RO denied a disability rating in excess of 10 percent for service-connected PTSD.  

Finally, in the October 2008 decision, the RO denied a claim for an earlier effective date for the grant of service connection for PTSD.  In his notice of disagreement, submitted in October 2009, the Veteran did not disagree with that issue.  Hence, it is not the subject to review by the Board on appeal.  In a statement submitted to the Board in July 2010, the Veteran alleges that the issue of entitlement to an earlier effective date for the grant of service connection for PTSD "deserves consideration on a special case basis."  Thus, it appears that the Veteran is seeking to revisit this issue.  The Board notes that in Rudd v. Nicholson, 20 Vet. App. 296 (2006), the United States Court of Appeals for Veterans Claims held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date.  Nevertheless, this issue has not been adjudicated by the AOJ, and, as such, is referred to the AOJ for appropriate action.   
FINDINGS OF FACT

1.  The Veteran's coronary artery disease requires treatment with continuous medication, fatigue on exertion at a workload of 12.4 metabolic equivalents (METs); but without any evidence of congestive heart failure or cardiac hypertrophy.  

2.  PTSD results in occupational and social impairment due to mild or transient symptoms.  


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating higher than 10 percent for coronary artery disease have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.100, 4.104, Diagnostic Code 7005 (2010).  

2.  The criteria for a disability rating in excess of 10 percent for PTSD have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.16, 4.130, Diagnostic Code 9411 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Veterans Claims Assistance Act of 2000 (the VCAA)

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2009).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (the Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  

Prior to initial adjudication of the Veteran's claims, letters dated in March 2008 and June 2008 fully satisfied the duty to notify provisions regarding the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187.  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records are in the claims file.  The Veteran identified relevant VA records for the claimed disabilities and those records have been obtained and associated with the claims file.  He has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.  

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2009).  The Veteran was provided VA examinations in March 2008, July 2008, and November 2009.  

The examination reports reference the Veteran's past medical history, recorded his current complaints, and conducted an appropriate physical and psychiatric examination, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board therefore concludes that the examinations are adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  38 C.F.R. § 4.2 (2009).   

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield, supra.


II.  Analysis

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2010).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. §1155 (West 2002 & Supp. 2010); 38 C.F.R. §4.1 (2010).

The Veteran's entire history is reviewed when making disability evaluations.  38 C.F.R. §4.1; Schafrath v. Derwinski, 1 Vet App. 589, 592 (1995).  However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  

Each disability must be considered from the point of view of the Veteran working or seeking work.  38 C.F.R. §4.2 (2010).  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 (1994). 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 (2010).  

A.  Coronary Artery Disease 

In July 2001, the Veteran had a mild myocardial infarction, requiring the placement of a stent.  In August 2002, he underwent a second stent placement.  In February 2008, the Veteran filed a claim seeking service connection for coronary artery disease.  

In the October 2008 decision on appeal, the RO granted the claim and assigned an initial 10 percent disability rating.  

The Veteran's coronary artery disease disability evaluation is rated under Diagnostic Code 7005.  Evaluations depend, at least in part, on the workload that results in certain symptoms.  This workload is expressed in metabolic equivalents (METs).  

One 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 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.  38 C.F.R. § 4.104, Note (2).  

Under the applicable criteria for a 10 percent rating, the evaluation accounts for situations where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required.  Id.  The next higher evaluation of 30 percent is assigned where a 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.  Id.  A 60 percent rating is assigned where there is more than one episode of acute congestive heart failure in the past year, or 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 less than 30 percent to 50 percent.  Id.  The maximum 100 percent rating is assigned for documented coronary artery disease (DC 7005) or myocardial infarction (DC 7006) resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of less than 30 percent.  Id.  

Here, a January 2008 VA outpatient treatment records noted that the Veteran was recently seen by cardiologist and given a "clean bill of cardiac health."  No tests or interventions were planned.  

He underwent a VA examination in July 2008.  At such time, the examiner noted the Veteran's history and reviewed the Veteran's claims file.  The Veteran was on heart medication but did not describe any heart-related symptoms.  On physical examination, he was able to exercise for 11:04 minutes to a maximum heart rate of 103 beats per minute (65% of predicted maximum) with an increase in blood pressure from 108/70 to 158/88.  

He underwent a second VA examination in November 2009.  Therein, the Veteran did not report any cardiac symptoms, but instead noted that he exercised and had no problems.  A physical examination was conducted but no stress test was performed.  Rather, the examiner reviewed the July 2008 stress tests results and noted that the workload was the equivalent of 12.4 METS.  The test did not result in chest pain or arrhythmia.  The examiner noted that the EKG portion of the test was non-diagnostic for evidence of ischemia.  Finally, he noted that the myocardial perfusion studies recorded an ejection fraction of greater than 50 percent.  

The Veteran's VA outpatient treatment records show that he receives regularly prescribed heart medications but do not show treatment for heart-related symptoms.  

The Board has reviewed the evidence of record, but finds that the criteria for an initial rating in excess of 10 percent have not been met.  The stress test result of 12.4 METS is nowhere near the level of disability contemplated for a 30 percent or greater evaluation under Diagnostic Code 7005.  In addition, there was no evidence of cardiac hypertrophy or dilatation on electrocardiogram.  Moreover, the VA outpatient treatment records do not show evidence of any episodes of acute congestive heart failure.  The myocardial perfusion studies showed an ejection fraction greater than 50 percent.  Rather, the evidence shows only that the coronary artery disease requires the use of continuous medications.  The Board has reviewed the Veteran's statements of record for any reason why a higher disability should be assigned, but he has offered none.  

Further, as the evidence of record shows that the cardiac symptoms were consistently at the 10 percent level, staged ratings are not assignable since February 2008.  The Board considered the most severe manifestations of the coronary artery disease and a staged rating would not provide any benefit to the Veteran.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

B.  PTSD  

By way of history, in a January 2005 decision, the RO granted entitlement to service connection for PTSD.  An initial 10 percent disability rating was assigned.  In February 2008, the Veteran filed a claim seeking entitlement to an increased rating.  

The Veteran seeks a disability rating in excess of 10 percent for service-connected PTSD.  PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009).  PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130 (2010).  The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows:

Under Diagnostic Code 9411, a 10 percent evaluation is warranted when the veteran exhibits occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; when symptoms are controlled by continuous medication.

Under such Diagnostic Code, a 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  See 38 C.F.R. § 4.130.  

A 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as:  suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  

Finally, a 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as:  gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name.  

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness."  See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32].

GAF scores ranging between 61 to 70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships.  GAF scores ranging between 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  

Here, the evidence consists primarily of VA outpatient treatment records and VA examination results.  The Veteran has submitted private mental health treatment records; however, they pertain to a period prior to the initiation of the current claim and are not useful in providing evidence of the current severity of the service-connected disability.  

Review of the VA outpatient treatment records does not reveal a PTSD disability that is anything other than mild.  For instance, an August 2007 note includes the Veteran's observations that he was making progress, making good decisions, and although he had some work-related stress, he was coping with it assertively.  The examiner's assessment was that PTSD was in remission.  

In addition, the initial VA examination in March 2008 does not include findings that support the claim for a higher disability rating.  Therein, the examiner noted that the Veteran's PTSD appeared mild and his capacity for adjustment remained good.  While the Veteran's marriage had dissolved, the examiner noted that such was due to several factors other than PTSD.  He maintained significant relationships with children, siblings, mother, and pastor.  The only symptoms that affected his occupational functioning was difficulty staying focused and paying attention.  The examiner noted that these symptoms were due to both PTSD and to attention deficit disorder.  Nevertheless, the examiner characterized the impact on occupational functioning as "mild."  

In addition, the GAF score of 70 assigned is consistent with the 10 percent disability rating and is characterized by mild symptoms.  

Similarly, the VA examination conducted in November 2009 does not include findings that would warrant the assignment of a higher rating.  For instance, the examiner noted that the Veteran was active socially.  No significant PTSD symptoms were reported.  He had nightmares about once a month and avoided watching war movies.  He was distractible, but the examiner attributed it to attention deficit disorder.  The examiner noted that the record indicated that PTSD was in remission.  His current PTSD was in the "mild range."  The GAF score of 70 assigned, as noted previously is consistent with the 10 percent disability rating.  

In reviewing the record, the Board has also considered the Veteran's own statements as to the severity of PTSD.  In his notice of disagreement to the October 2008 rating decision, he does not indicate why a higher rating is warranted.  Similarly, his substantive appeal, filed in June 2010, is silent for any contentions.  The Veteran did submit a statement in July 2010 in which he states that a 25 percent rating is appropriate for PTSD.  He does not state, however, why such a rating would be warranted.  As such, his statements alone do not support the assignment of an increased rating.  

C.  Extra-Schedular Consideration

Finally, the rating schedule represent as far as is practicable, the average impairment of earning capacity.  Ratings will generally be based on average impairment.  38 C.F.R. § 3.321(a), (b) (2010).  To afford justice in exceptional situations, an extraschedular rating can be provided.  38 C.F.R. § 3.321(b).

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.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1). (related factors include "marked interference with employment" and "frequent periods of hospitalization").  Id.

When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

As noted above, the Veteran's heart condition and PTSD disabilities are contemplated by the pertinent rating criteria.  The rating criteria reasonably describe the disabilities.  In addition, while the Veteran is unemployed, it is not shown that that the disabilities cause marked interference with employment, nor are the disabilities shown to result in hospitalizations.  Hence, referral for consideration of extraschedular ratings is, therefore, not warranted.



ORDER

An initial rating in excess of 10 percent for coronary artery disease is denied.  

A disability rating in excess of 10 percent for post-traumatic stress disorder is denied.  



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs