Citation Nr: 1236384 Decision Date: 10/19/12 Archive Date: 11/05/12 DOCKET NO. 06-12 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an initial compensable disability rating for coronary artery disease with arteriosclerosis prior to January 26, 2011, and entitlement to a rating in excess of 60 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to October 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO) which, in pertinent part, granted service connection for arteriosclerosis and assigned a 0 percent (non-compensable) evaluation effective January 25, 2005. In July 2010, the Board, in pertinent part, remanded the increased rating claim for arteriosclerosis for further development. In a February 2012 rating decision, the RO rephrased the Veteran's disability as coronary artery disease with arteriosclerosis and increased the rating from 0 to 60 percent, effective January 26, 2011. Because the Veteran was not awarded a complete grant of the benefit sought and he disagrees with the 60 percent rating (see Veteran's March 2012 statements), the increased rating claim is still on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Also in his March 2012 statements, the Veteran appears to be requesting an earlier effective date for both the grant of service connection and the award of the 60 percent rating for his coronary artery disease, as well as maintaining that a prior decision contains clear and unmistakable error. The Board notes that the effective date of the 60 percent rating is inherently included in the Veteran's increased rating here on appeal. However, the issue of entitlement to an effective date earlier than January 25, 2005, for the grant of service connection for arteriosclerosis has not yet been adjudicated by the RO and is therefore referred to the RO/AMC for the appropriate action. Additionally, the Board notes that the Veteran's contentions regarding error in a prior decision were addressed by the RO in its May 2012 rating decision; the RO determined that no revision was warranted in the zero and 60 percent ratings assigned for the Veteran's coronary artery disease. A review of the record also reflects that entitlement to special monthly compensation on account of loss of use of a creative organ was granted from November 27, 2000. The Veteran was assigned a 100 percent rating for his service-connected posttraumatic stress disorder (PTSD) from November 19, 2003. A 100 percent rating was also assigned from January 25, 2005, based on the grant of service connection for bilateral peripheral neuropathy of the feet. Additionally, in the most recent rating decision, the RO granted entitlement to special monthly compensation based on housebound criteria based on the Veteran's posttraumatic stress disorder, rated as 100 percent disabling, and his coronary artery disease independently rated as 60 percent from January 26, 2011. The Board notes that the Court has held that a claim for a TDIU is generally a rating theory and "not a separate claim for benefits." Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board also notes that bifurcation of a claim is generally a matter within VA discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009) (en banc) (holding that it is permissible for the Secretary to bifurcate a request for benefits on the basis of direct service connection from the request on the basis of presumptive service connection); see also Rice, 22 Vet. App. at 455, n. 7. The Board finds, however, in this case, as a result of the 100 percent schedular ratings and special monthly compensation benefits awarded in the February 2012 rating decision effective from the date of the original claim on January 25, 2005, there are no remaining issues to be resolved as to a bifurcated TDIU issue and it need not be addressed as a separate matter for appellate review. But see Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). Lastly, the Board notes that, in a 2011 statement, the Veteran's indicated that he wished to file a notice of disagreement with a July 2009 rating decision that denied entitlement to a TDIU; however, as the RO noted in its February 2012 correspondence to the Veteran, his notice of disagreement was untimely because it was not received within a year of the notification letter and therefore could not be accepted as a valid notice of disagreement. FINDINGS OF FACT 1. VA transthoracic echocardiogram conducted on October 19, 2010 showed evidence of coronary artery disease and an ejection fraction of 45 +/- 5 percent. 2. Prior to October 19, 2010, there was evidence of generalized arteriosclerosis, but no diagnosed heart condition. There was no evidence of coronary artery disease productive of a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication required. 3. From October 19, 2010, the Veteran's coronary artery disease does not result in chronic congestive heart failure; a workload of 3 METS or less; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. Prior to October 19, 2010, the criteria for an initial compensable rating for coronary artery disease with arteriosclerosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2011). 2. From October 19, 2010, the criteria for a 60 percent rating for coronary artery disease with arteriosclerosis have been met. 38 U.S.C.A. §§ 1155, 5110(a), 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.321, 3.400, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The Veteran's increased rating claim for bilateral hearing loss arises 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). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2011). Service treatment records have been associated with the claims file. The record also contains VA and private medical evidence, and the Veteran's contentions. The Veteran has been medically evaluated in conjunction with this claim. In this regard, VA examination reports of record include complete findings and are sufficient for determining the severity of the Veteran's cardiac impairment. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board is also satisfied that all identified and available treatment records have been secured. In June 2012, the Veteran, through his representative, indicated that he had no additional evidence to submit and asked that his case be forwarded immediately to the Board. Additionally, in August 2012 written argument, the Veteran's representative indicated that there was no additional evidence to submit. The duties to notify and assist have been met. II. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2011). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2(2011), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal ensues from the Veteran's disagreement with the evaluation assigned in connection with the original grant of service connection, as is here, the potential for the assignment of separate, or "staged" ratings for separate periods of time, based on the facts found, must be considered. Fenderson v. West, 12 Vet. App. 119 (1999). Where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Pertinent law provides that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The use of manifestations not resulting from service-connected disease or injury is to be avoided. 38 C.F.R. § 4.14. III. Analysis The Veteran's coronary artery disease is rated under Diagnostic Code 7005 for arteriosclerotic heart disease (coronary artery disease). The provisions of 38 C.F.R. § 4.100 provide that metabolic equivalent (MET) testing is required for an evaluation under Diagnostic Code 7005 unless certain exceptions are met. One MET 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). Under Diagnostic Code 7005, a 10 percent rating is assigned for arteriosclerotic heart disease where a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication required. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2011). A 30 percent rating is assigned for arteriosclerotic heart disease with a 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 dilation on electrocardiogram, echocardiogram, or x-ray. Id. A 60 percent rating requires more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is assigned for arteriosclerotic heart disease resulting in chronic congestive heart failure; or workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The Veteran's service treatment records are negative for any cardiac complaints, treatment, and/or diagnosis. Post-service, a VA computed tomography scan of the abdomen and pelvis taken in August 2004 showed evidence of generalized arteriosclerosis. During a February 2005 VA examination in connection for his diabetes mellitus claim, the examiner opined that the Veteran had asymptomatic arteriosclerosis which is at least as likely as not related to his service-connected diabetes mellitus. In light of the positive etiology opinion, the RO granted service connection in the August 2005 rating decision and assigned a noncompensable rating. In September 2007, the Veteran underwent a VA "arteries and veins" examination. Cardiac examination revealed no heaves, thrills, or lifts. There was a regular heart rate with no murmurs, rubs, clicks, or gallops. There were no bruits or varicose veins. Peripheral pulses were supple, ample, and symmetric. In June 2009, the Veteran underwent a VA general medical examination. The Veteran's heart had a regular rate and rhythm without murmurs, rubs, clicks, or gallops. The point of maximum impulse was at the 5th intercostal, left midclavicular line; there were no heaves, thrills, lifts. There were also no bruits or varicose veins. Peripheral pulses were supple, ample, and symmetric. A cardiac diagnosis was not rendered. An October 14, 2010, VA heart examination report indicates that there was no evidence of congestive heart failure or pulmonary hypertension. The examiner noted that the Veteran showed no evidence of any distress. The October 2010 VA examiner indicated that there was "no diagnosis of atherosclerosis of the heart; generalized arteriosclerosis." The examiner also stated that the Veteran had never been diagnosed with a heart condition, including atherosclerosis. He stated that aside from the 2004 CT evidence of calcification of the aorta, the Veteran had never had symptoms of dyspnea (except on very strenuous physical activity such as running), angina, or dizziness ( a few syncopal episodes were noted but due to his insulin and not his heart). The examiner stated further that the Veteran's feeling of occasional fatigue was due to his PTSD symptoms. The examiner concluded that the Veteran did not have any functional impairment secondary to his heart. An echocardiogram conducted on October 19, 2010, showed that the Veteran's left ventricular systolic function was mildly reduced and ejection fraction was 45 +/- 5 percent. The transmitral spectral doppler flow pattern was suggestive of impaired left ventricular relaxation. There was inferoseptal wall moderate hypokinesis; moderate septal wall hypokinesis; and mild to moderate anterior wall hypokinesis. Wall motion abnormalities were suggestive of coronary artery disease involving the left anterior descending and right coronary artery distributions. The Veteran's pulmonary artery pressures were not assessed due to incomplete TR envelope. There was mild aortic root dilation and no pathologic valvular heart disease. According to a December 2010 Nuclear Radiology Consultation report, the Veteran's maximum workload was 4.8 METs. The examination was stopped because of the Veteran's inability to coordinate his gait. He denied any chest pain or pressure. On January 25, 2011, the Veteran reported shortness of breath; chest x-rays showed no evidence of acute intrathoracic abnormalities. Coronary artery angiogram taken on January 26, 2011, was described as abnormal and showed the following: severe 2 vessel coronary artery disease of mid circumflex artery and 100 percent distal RCA with grade 1 left to right and grade 2 right to right bridging collaterals; intermediate coronary artery disease of mid left anterior descending and D2; arterial hypertension; moderate peripheral vascular disease of the left femoral artery; and ischemic cardiomyopathy; echocardiogram left ventricular ejection fraction was 45 +/-5; and nuclear left ventricular ejection fraction was 47 percent. Left ventricular diastolic pressure was 11 (normal). In September 2011, the Veteran had a 6 month cardiac follow up appointment. He denied chest pain, pressure or palpitations, shortness of breath, and syncope. He also denied DOE with activity. He reported feeling lightheaded intermittently with position change. The Veteran underwent a VA heart examination in January 2012, pursuant to the Board's prior remand. He reported fatigue with exertion, shortness of breath with exertion, and occasional chest pain. He also reported an isolated episode of syncope in the past but none within the last year. He indicated that he also experienced occasional dizziness, but was unsure of its cause. It was noted that the Veteran has not had a myocardial infarction, congestive heart failure, or cardiac arrhythmias, or a heart valve condition. On examination, the Veteran's heart rate was 78 with a regular rhythm with point of maximal impact at the 5th intercostal space. Heart sounds were normal. There was no jugular-venous distention. The Veteran's lungs were clear, peripheral pulses were normal, and there was no evidence of peripheral edema in the lower extremities. Blood pressure was 128/74. The examination report referred to a January 2012 echocardiogram which revealed the following: left ventricular ejection fraction of 55 percent; wall motion was normal; wall thickness was abnormal as there was mild concentric hypertrophy. An interview-based METs test was also conducted and the Veteran experienced dyspnea, dizziness, fatigue, and syncope. The results were >3-5 METS, which was noted as consistent with activities such as light yard work, such as weeding or mowing the lawn, or brisk walking. The examiner indicated that when comparing the Veteran's 2010 exercise test results and the 2012 interview-based METs test, the interview test results most accurately reflects the Veteran's current cardiac functional level. Final diagnosis was coronary artery disease/ischemic cardiomyopathy. Having reviewed the entire record, the Board finds that the currently assigned 60 percent rating should be assigned earlier, from October 19, 2010. The Board is cognizant that the October 2010 VA examiner indicated that the Veteran had only generalized arteriosclerosis, and not a heart condition; however, an echocardiogram that was ordered during that examination and conducted just five days later showed evidence of coronary artery disease and an ejection fraction of 45 +/- 5 percent. These findings correspond with a 60 percent rating under Diagnostic Code 7005. Prior to the October 19, 2010, echocardiogram, there was no medical evidence of a heart condition per se. Indeed, a 2004 CT scan of the abdomen and pelvis showed that the Veteran had developed generalized arteriosclerosis; however it had not been shown in the record to have affected his coronary arteries prior to October 19, 2010. As there was no evidence of coronary artery disease productive of a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or requiring continuous medication, an initial compensable rating is not warranted prior to October 19, 2010. Additionally, the Board finds that a rating in excess of 60 percent for the Veteran's coronary artery disease is not warranted from October 19, 2010. In this regard, there is no competent evidence showing that the Veteran's heart disease has resulted in chronic congestive heart failure. There is also no competent evidence showing that his heart disease is productive of a workload of 3 METs or less. The evidence shows that in December 2010, the Veteran's maximum workload was 4.8 METs. And, although the Veteran experienced dyspnea, dizziness, fatigue, and syncope during his January 2012 interview-based METs test, such test only resulted in a workload of >3-5 METs. Notably, the January 2012 VA examiner indicated that the Veteran's interview-based METs test, as opposed to the 2010 exercise test, most accurately depicted the Veteran's disability picture. The Board is cognizant that the Veteran's METs level limitation was not due solely to his heart condition, but rather due to multiple factors which could not be accurately estimated by the examiner. The examiner noted further that the Veteran has other non- cardiac medical conditions, specifically diabetes/neuropathy and chronic obstructive pulmonary disorder, which limit his METs level to an unknown degree. Notwithstanding, for purposes of this analysis only, the Board has attributed the Veteran's METs level limitation to his coronary artery disease. See Mittleider, supra. Finally, there is no evidence of left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran's left ventricular ejection fraction was 45 +/- 5 percent during the January 2011 coronary artery angiogram and his nuclear ejection fraction was 47 percent. Additionally, the Veteran's left ventricular ejection fraction was 55 percent during his January 2012 echocardiogram. Based on the foregoing, a higher rating in excess of 60 percent for coronary artery disease is not warranted from October 19, 2010. The Veteran is competent to report his observable cardiac symptoms, such as pain and functional impairment. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, without the appropriate medical training and expertise, he is not competent to provide an opinion on a medical matter, such as the nature and severity of his arteriosclerosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, although the Veteran's reports of symptoms have been considered, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, the Board concludes that the currently assigned 60 percent rating, but no higher, should be effective from October 19, 2010, and that a noncompensable rating is appropriate prior to that date. No additional staged ratings are warranted. As the preponderance of the evidence is against the Veteran's claim for an increased rating for coronary artery disease with arteriosclerosis, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b) (West 2002). Finally, in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's arteriosclerosis. Additionally, the 2012 VA examiner opined that the Veteran's arteriosclerosis prevent him from doing manual work, but not sedentary work. What the Veteran has not shown in this case is that his service-connected coronary artery disease with arteriosclerosis has resulted in unusual disability or impairment that rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate at any time during the current appeal. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. ORDER Prior to October 19, 2010, entitlement to an initial compensable rating for coronary artery disease with arteriosclerosis is denied. From October 19, 2010, a 60 percent rating for coronary artery disease with arteriosclerosis is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs