Citation Nr: 1237696 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 10-10 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial rating in excess of 10 percent for coronary artery disease associated with type II diabetes mellitus, since January 6, 2010. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to November 1970. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Buffalo, New York. In April 2012 the Board remanded the matter for additional development. In that decision, a 10 percent rating was granted for the heart disease prior to January 6, 2010. The requested development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. FINDING OF FACT Since January 6, 2010, the Veteran's coronary artery disease has not resulted in dypnea, fatigue, angina, dizziness, or syncope at a workload of 5-7 metabolic equivalents (METs), and there has not been evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. CONCLUSION OF LAW Since January 6, 2010, 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. 2011); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.100, 4.104, Diagnostic Code 7005 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Under applicable law, 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in January 2009 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The Board notes that the Veteran has not been provided specific notice regarding VA's assignment of disability ratings and effective dates. Dingess v. Nicholson, 19 Vet. App. 473 (2006). However, the absence of such notice is not shown to prejudice the Veteran. Because the Board herein denies the claim for an increased rating, no disability rating or effective date is being, or is to be, assigned. Accordingly, there is no possibility of prejudice to the Veteran under the notice requirements of Dingess. VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. His service treatment records and post service treatment records have been obtained. He has been afforded the opportunity for a personal hearing. He has been provided VA examinations. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the Veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). At the outset, the Board observes that the Veteran expressed his timely disagreement with the September 2009 decision that awarded him service connection for coronary artery disease. As the Veteran appealed the initial noncompensable evaluation assigned, the severity of his disability is to be considered during the entire period from the initial assignment of the disability ratings to the present. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Here the earlier period has been adjudicated. As noted, in an April 2012 decision/remand, the Board awarded the Veteran a 10 percent evaluation for his coronary artery disease prior to January 6, 2010, and remanded the matter at bar for further development. In April 2012 rating decision, the RO implemented the Board's decision, and a 10 percent evaluation was assigned, effective January 20, 2009, the date of VA's receipt of his claim for service connection. Accordingly, at issue presently is whether the Veteran is entitled to an initial rating in excess of 10 percent since January 6, 2010. The Veteran's coronary artery disease is rated under Diagnostic Code 7005. Under this code, evaluations depend, at least in part, on the workload that results in certain symptoms. This workload is expressed in 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. In a January 6, 2010 private treatment record, the Veteran's heart revealed a regular rate and rhythm, normal S1 and S2, and no S3, S4, loud murmur, or rub. The examiner noted he had a nuclear stress test performed in July, which showed significant ST-segment depressions, and a small defect in the inferior wall with nuclear imaging. On examination, he was asymptomatic from a neurovascular standpoint. He denied dyspnea on exertion. Given abnormalities in his stress test, however, a cardiac catheterization was scheduled to assess his coronary anatomy. On January 13, 2010, the Veteran underwent a cardiac catheterization at a private facility. He was diagnosed with single vessel coronary artery disease and normal left ventricular ejection fraction. An attempt at percutaneous revasularization of the right coronary artery was unsuccessful. No documentation of cardiac hypertrophy or dilation was made. In February 2010, a bilateral carotid Doppler sonogram was conducted. The Veteran was diagnosed with less than 50 percent left internal carotid artery stenosis bilaterally. In June 2011, an electrocardiogram was conducted, which showed sinus rhythm and a complete right bundle branch block. There was no evidence of symptomatic bradyarrhythmia or evidence for new myocardial infarction. The examiner noted that the Veteran had a stress test performed in July 2010 which revealed no evidence for myocardial ischemia, and he had a carotid dyplex study performed over a year ago that did not reveal any significant internal carotid artery disease. In April 2012, a number of diagnostic tests were conducted. The Veteran's left ventricular ejection fraction was 63 percent. He had normal myocardial perfusion. The electrocardiogram was negative for ischemia. The left ventricle was normal in size. Left ventricular regional wall motion/thickening was entirely normal involving al left ventricular segments. The findings essentially excluded the presence of any significant coronary artery stenosis, and indicated an extremely low probability (less than 1 percent) that the Veteran would experience a coronary event in the next couple of years. No significant changes were noted since a pharmacologic nuclear stress study performed in July 2010. On VA examination in May 2012, the Veteran experienced dyspnea at greater than 7 to 10 METs. He did not experience fatigue, angina, dizziness, or syncope at this level. He did not have congestive heart failure. The examiner determined there was no evidence of cardiac hypertrophy or dilation based on the April 2012 left ventricular ejection fraction study. His coronary artery disease did not impact his ability to work. Considering the evidence in light of the above, the Board cannot find that the criteria for a rating in excess of 10 percent since January 6, 2010 for the Veteran's coronary artery disease have been met. As the foregoing indicates, the Veteran's coronary artery disease has not resulted in dyspnea, fatigue, angina, dizziness, or syncope at a workload of 5-7 metabolic equivalents (METs), and there has not been evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. He has also not been diagnosed with congestive heart failure, and his left ventricular dysfunction has had an ejection fraction in excess of 50 percent. The Board can find no other diagnostic code applicable to the Veteran's claim that would afford him a higher rating. The Board has considered the Veteran's own assertions regarding his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a higher rating require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the Veteran's assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support higher ratings than those assigned. The Board also notes that it finds no basis for inferring a claim of entitlement to a total disability evaluation based on individual unemployability (TDIU) at this time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has not contended, and the evidence does not show, that he has been unemployed at any point during the course of this appeal due to his coronary artery disease. Finally, 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 extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case, there are no exceptional or unusual factors with regard to the Veteran's coronary artery disease. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is 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, and provide for consideration of greater disability and symptoms than currently shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. In sum, the weight of the credible evidence demonstrates that the Veteran's coronary artery disease does not warrant an initial rating in excess of 10 percent since January 6, 2010. As the preponderance of the evidence is against the claim for an increased rating, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for coronary artery disease associated with type II diabetes mellitus since January 6, 2010 is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs