Citation Nr: 1301050 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 04-05 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for hypertensive arteriosclerotic heart disease with evidence of coronary artery disease prior to July 29, 2009, then rated as 30 percent disabling. REPRESENTATION Appellant represented by: Michelle D. Powers, Attorney ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to June 1969, and from December 1969 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2005 and March 2008, the Board remanded the issue of entitlement to an evaluation greater than 30 percent for service-connected heart disease. In August 2010, the Board denied entitlement to an evaluation greater than 30 percent for the period prior to July 29, 2009; and remanded the issue of entitlement to an evaluation greater than 30 percent for the period since July 29, 2009. In March 2012, the Board granted an increased, 60 percent rating for service-connected heart disease, effective August 25, 2010; and denied entitlement to an evaluation greater than 30 percent for the period dated from July 29, 2009 to August 24, 2010. The Veteran appealed the Board's August 2010 decision denying entitlement to an evaluation greater than 30 percent for the period prior to July 29, 2009 to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 Memorandum Decision, the Court vacated the Board's denial for this period of the appeal, and remanded the matter to the Board for further proceedings consistent with the Memorandum Decision. Following the Board's August 2010 decision, the representative submitted correspondence waiving the Veteran's right to have the issue of entitlement to an evaluation greater than 30 percent for service-connected heart disease remanded if additional evidence was submitted. In December 2011, additional VA medical records were added to the Veteran's electronic claims folder in Virtual VA. The majority of these records are not relevant to the listed issue To the extent they are relevant, and were not previously considered, the Board finds that they are covered by the December 2011 waiver. See 38 C.F.R. § 20.1304 (2012). Accordingly, the Board will proceed with the merits of the appeal. As noted in three previous remands, the issue of entitlement to service connection for glaucoma, secondary to diabetes mellitus, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue and it is again referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the period from May 28, 2003 to July 22, 2008, evidence indicates hypertensive arteriosclerotic heart disease with left ventricular dysfunction with an estimated ejection fraction of 50 to 55 percent. 2. Between May 28, 2003 and July 22, 2008, the evidence did not show chronic congestive heart failure, or; workload of 3 metabolic equivalents (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. On July 23, 2008, the Veteran underwent a myocardial perfusion study that showed an ejection fraction of 60 percent. 4. The evidence between July 23, 2008 and July 28, 2009, does not show more than one episode of acute congestive heart failure in the prior year, or; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, for the period from May 28, 2003 to July 22, 2008, the criteria for a 60 percent evaluation, and no more, for hypertensive arteriosclerotic heart disease with evidence of coronary artery disease were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.104, Diagnostic Code 7005 (2012). 2. For the period from July 23, 2008 to July 28, 2009, the criteria for an evaluation greater than 30 percent for hypertensive arteriosclerotic heart disease with evidence of coronary artery disease were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5110; 38 C.F.R. §§ 3.159, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) 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 July 2005, April 2006, and May 2008 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, and notice of what part VA will attempt to obtain. In the April 2006 correspondence, VA notified the appellant of 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 the May 2008 correspondence. The claim was readjudicated in an October 2009 supplemental statement of the case. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. 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). Analysis Historically, in March 1994, the RO granted entitlement to service connection for hypertensive arteriosclerotic heart disease, and assigned a 30 percent disability rating. On June 27, 2003, the RO received VA treatment records, which was construed as a claim for an increased rating. In July 2003, the RO denied entitlement to an increased rating. The Veteran perfected this appeal. As noted, in March 2012, the Board denied entitlement to an evaluation greater than 30 percent for the appellant's heart disease for the period from July 29, 2009 to August 24, 2010, and awarded a 60 percent evaluation beginning on August 25, 2010. The March 2012 Board decision was not the subject of the Court's April 2012 Memorandum Decision. Thus, this decision is limited to whether an evaluation greater than 30 percent is warranted for the period prior to July 29, 2009. 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. 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 (2012); 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 (2012). If there is a question as to which evaluation to apply, 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 (2012). When 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim that is not on appeal from the assignment of an initial rating when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The Veteran's service-connected heart disease has been rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. Under this diagnostic code, a 30 percent rating is warranted when there is coronary artery disease with a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. 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 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when left ventricular dysfunction with an ejection fraction of 30 to 50 percent is shown. 38 C.F.R. § 4.104. A 100 percent evaluation is assigned when there is chronic congestive heart failure, or; a 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. 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 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). VA treatment records show that in May 2003, following complaints of retrosternal chest pain with occasional radiation to the left arm, the Veteran underwent a myocardial perfusion stress test. The results of this test revealed evidence of perfusion defects with left ventricular cavity dilation. It was recommended that the Veteran undergo left cardiac catheterization. On May 28, 2003, the Veteran underwent left heart catheterization. Conclusion included no evidence of obstructive coronary disease with preserved left ventricular systolic function. Left ventricular ejection fraction was "estimated" (sic) at 50 to 55 percent. Thereafter, on July 23, 2008, the Veteran was again evaluated by cardiology; a myocardial perfusion study was performed. The study was reported as uneventful with evidence of left ventricular dilation and well-preserved ejection fraction of 60 percent. Given the estimated ejection fraction of 50 percent on May 28, 2003, the Board finds after resolving reasonable doubt in the Veteran's favor, that a 60 percent evaluation is warranted from May 28, 2003 to July 22, 2008. While the other factors for a 60 percent rating were clearly not shown during this term, the fact remains that there was no cardiovascular study from this period definitively showing an ejection fraction above 50 percent. Hence, a 60 percent rating for this term is granted. See 38 C.F.R. §§ 4.3, 4.7. The criteria for a 100 percent evaluation were not met, however, as there was no evidence of chronic congestive heart failure, METs of 3 or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or an ejection fraction less than 30 percent. 38 C.F.R. § 4.104. For the period from July 23, 2008 to July 28, 2009, the criteria for an evaluation greater than 30 percent were not met as there was no evidence of either more than one episode of acute congestive heart failure in any twelve month term, a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Indeed, the Veteran's ejection fraction was reported as 60 percent in July 2008. As this is well above 50 percent, the Board has assigned a staged rating pursuant to Hart. The Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. Schafrath v, 1 Vet. App. at 589. 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. If the 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. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). As discussed above, applicable rating criteria reasonably describe the Veteran's disability level and symptomatology. As his disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral for extraschedular evaluation is in order. Id. As for higher ratings due to unemployability, the Veteran is currently receiving a combined 100 percent schedular evaluation, effective from December 7, 2007. Thus, there is no basis for inferring a claim for entitlement to a total disability evaluation based on unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER For the period from May 28, 2003 to July 22, 2008, entitlement to a 60 percent evaluation for hypertensive arteriosclerotic heart disease with evidence of coronary artery disease is granted, subject to the laws and regulations governing the award of monetary benefits. For the period from July 23, 2008, to July 28, 2009, entitlement to an evaluation greater than 30 percent for hypertensive arteriosclerotic heart disease with evidence of coronary artery disease is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs