Citation Nr: 1301258 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 07-35 889 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for coronary artery disease (heart disability) from the date of the increased rating claim, February 24, 2006, to March 24, 2008. 2. Entitlement to a disability rating higher than 30 percent for coronary artery disease (heart disability) from March 25, 2008, forward. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1969. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Milwaukee, Wisconsin Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a June 2006 rating decision, the RO continued the then existing 10 percent disability rating for coronary artery disease (CAD). In a December 2008 rating, the RO increased the rating for CAD to 30 percent, effective March 25, 2008. In October 2010, the Veteran had a Travel Board hearing at the RO before the undersigned Veterans Law Judge. In December 2010, the Board remanded the case to the RO via the VA Appeals Management Center (AMC) for the development of additional evidence. In that remand, the Board noted that at the hearing it was indicated that the Veteran might file a claim for a TDIU. The United States Court of Veterans Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA must consider TDIU as part of the issue of a proper disability rating whenever there is "cogent evidence of unemployability, regardless of whether [the claimant] states specifically that he is seeking TDIU benefits." Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009). Reading Rice and Comer together, and noting that the record contained evidence suggesting unemployability, the Board, in the 2010 remand, concluded that the issue of a TDIU should be raised in this case. The RO had not adjudicated the issue of TDIU. The Board remanded the issue to the RO to provide the Veteran appropriate notice, develop evidence as needed, and adjudicate the issue of a TDIU. The Board indicated that the issue of TDIU would not be before the Board unless the Veteran appealed the RO's forthcoming rating decision as to a TDIU. In August 2011, the RO provided the Veteran notice with respect to the TDIU issue. In a June 2012 rating decision, the RO denied a TDIU. At the time when the Board is considering this case, the Veteran has not initiated an appeal of the June 2012 denial of a TDIU. Therefore, that issue is not on appeal before the Board at this time. In this regard, the Board must note that it has reviewed the Veteran's statements, and those of his spouse, carefully. The spouse has recently indicated that the Veteran is still working, but at a more limited pace. The Board finds this is entirely consistent with a Veteran that has a 90% disability evaluation overall, while providing support for a finding that TDIU is not being raised, or appealed, at this time. With respect to the appeals for higher ratings for CAD, the Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review of those issues. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. Prior to March 25, 2008, the Veteran's CAD did not produce dyspnea, fatigue, angina, dizziness, or syncope at a workload of fewer than 7 METs; and there was no electrocardiogram, echocardiogram, or x-ray evidence of cardiac hypertrophy or dilatation. 2. The Veteran's CAD has not produced dyspnea, fatigue, angina, dizziness, or syncope at a workload of fewer than 5 METs. There has been no congestive heart failure, and the left ventricular ejection fraction has not been 50 percent or lower. CONCLUSIONS OF LAW 1. Prior to March 25, 2008, the Veteran's CAD did not meet the criteria for a disability rating higher than 10 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.104, Diagnostic Code 7005 (2012). 2. The Veteran's CAD has not met the criteria for a disability rating higher than 30 percent. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On February 24, 2006, the RO received the Veteran's claim for a rating for CAD higher than the then existing 10 percent rating. The Veteran appealed the RO's June 2006 rating decision continuing the 10 percent rating. He continued his appeal after the December 2008 rating in which the RO increased the rating to 30 percent effective March 25, 2008. He essentially contends that the extent and effects of his CAD warrant ratings higher than those that have been assigned. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, the Board will consider whether different ratings are warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. The rating schedule provides for evaluating CAD based in part on the workload, in Metabolic Equivalent of Task (MET) units, that results in dyspnea, fatigue, angina, dizziness, or syncope. 38 C.F.R. § 4.104, Diagnostic Code 7005. The rating criteria are as follows: 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 .............................................. 100 percent 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 ................. 60 percent 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 ....... 30 percent Workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required .... 10 percent The Veteran underwent seven vessel coronary artery bypass graft surgery in June 1998. He has had ongoing treatment, including medications, for his heart disease. In February 2006, the Veteran underwent imaging and testing at a private hospital. Based on a myocardial perfusion scan, a physician computed a left ventricular ejection fraction (LVEF) of 71 percent. On exercise stress testing, the maximum workload obtained was 10.1 METs. Exercise was terminated due to fatigue. A physician indicated that the test results connoted an excellent prognosis. On VA heart examination in April 2006, the Veteran denied any abnormal shortness of breath, dizziness, palpitations, paroxysmal nocturnal dyspnea (PND), or orthopnea, providing evidence against his own claim. He stated that he rarely had an episode of chest discomfort with exertion, although that sensation was different from the sensation he had in the past. Pain was relieved with rest and did not require nitroglycerin. It was noted that on a stress test in 2000 he achieved a workload of 13 METs, and was found to have an LVEF of 65 percent. The Veteran reported than he owned an importing and exporting business, and that he continued to maintain a relatively active lifestyle. He stated that he could walk from a half mile to a mile before feeling fatigued, and that he could climb several flights of stairs. He denied recurring chest discomfort or shortness of breath with activity. The Veteran reported the recent testing at the private hospital. The examining physician stated that the Veteran was exhibiting no increased symptoms of his CAD. The examiner found no evidence of increased functional loss or new symptoms, nor of any worsening of the Veteran's CAD. In handwritten notes on the examination report, the examiner later recorded the results of the February 2006 testing. In VA outpatient diabetes treatment in May 2007, it was noted that the Veteran had longstanding chest discomfort with both typical and atypical features. Some notes from VA diabetes treatment in 2007 through 2009 contain a history indicating no chest pain and no shortness of breath. In a November 2007 statement, the Veteran wrote that the report of the April VA examination was inaccurate. He stated that he reported that he always had pain and discomfort with exertion, followed by inability to perform tasks the next day, but that the examining physician reported that he rarely had chest discomfort. The Veteran indicated that he had significant peripheral edema in his extremities most of the day, but the examiner reported that he had no peripheral edema in his extremities. The Veteran stated that the examiner behaved in a rushed and uninterested manner, and spent only five minutes performing the examination. He stated that his heart disease, along with his diabetes, hypertension, lower extremities peripheral neuropathy, and residuals of lower extremity gunshot wounds, made him unable to perform the normal tasks required to run his business. He stated that his disabilities limited the time he could stand or walk, and impaired his concentration, harming his capacity for decision making and multitasking. Echocardiography performed at a VA facility on March 25, 2008, showed mild concentric hypertrophy and mild enlargement of the left atrium. VA primary care notes from May 2009 reflect the Veteran's report of moderate edema in both ankles, and some shortness of breath with exertion that goes away with rest. In the October 2010 Travel Board hearing, the Veteran indicated that he was on medications for his heart disease. He stated that he had chest pain most of the day. He related that after walking for a modest distance he had to sit down and take a break. He indicated that he occasionally had dizziness with exertion. He stated that if he exerted himself too much, he would be especially fatigued and limited the following day. He reported that his chest pain diminished his capacity to perform tasks. On VA heart examination in October 2011, the examiner noted that continuous medication was required for control of the Veteran's CAD. The examiner indicated that the Veteran had not had congestive heart failure. Examination revealed a trace amount of peripheral edema in the left lower extremity, and none in the right lower extremity. The examiner noted that there was echocardiogram evidence of cardiac hypertrophy. The examiner stated that echocardiogram in March 2008 showed an LVEF of 55 percent. The examiner estimated the Veteran's METs level based on interview. She estimated that his METs level limit was 5 to 7, or consistent with activities such as walking one flight of stairs, golfing, mowing a lawn, or doing yard work. The examiner indicated that the Veteran's heart condition does not impact his ability to work. The evidence prior to March 25, 2008, does not indicate that the Veteran had a workload limit of fewer than 7 METs. The Veteran stated that he had chest pain with exertion to a greater extent than was reflected in the report of the April 2006 VA examination. The February 2006 private testing is competent and credible evidence, however, of the Veteran's workload capacity. In the Veteran's 2007 accounts, the limitation he describes is not significantly greater than the limitation indicated by the test results. The preponderance of the evidence therefore shows that the Veteran did not have workload limitation that met or approached the criteria of a 30 percent rating. Prior to March 25, 2008, there was no electrocardiogram, echocardiogram, or x-ray evidence of cardiac hypertrophy or dilatation. As neither workload limitation levels nor imaging findings support a higher rating, the Board denies a rating higher than 10 percent for the period prior to March 25, 2008. The evidence from March 25, 2008, forward, does not indicate that the Veteran has had a workload limit of fewer than 5 METs. The limitations and the effects of activity that the Veteran has described mostly are consistent with the METs level that the VA physician estimated in 2011. The Veteran's 2010 indication that he has chest pain most of the day suggests a lower METs level, but at treatment visits the Veteran's accounts of symptoms have not been of chest pain or shortness of breath occurring even with very minimal activity. Considering the examiner's findings and the picture presented by most of the Veteran's statements, the Board finds that the preponderance of the evidence indicates a workload limitation level that does not meet the criteria for a rating higher than 30 percent. There is no evidence of congestive heart failure, and no evidence of an LVEF of 50 percent or lower. The manifestations and effects of the Veteran's CAD have not met the criteria for a rating higher than 30 percent, and the Board thus denies a higher rating. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's CAD has not required frequent hospitalizations. He has indicated that his heart disease has some effect on his work in the business he runs from home, but he has not asserted, and the evidence does not tend to indicate, that his CAD, considered apart from his other disabilities, interferes with employment to a marked extent. The rating schedule provides for higher ratings for greater levels of impairment. Thus, the Veteran's CAD does not present an exceptional or unusual disability picture, it is practical to evaluate his CAD under the rating schedule, and it is not necessary to refer the rating of the CAD for consideration of an extraschedular rating. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The Court has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in letters issued in April 2006 and May 2008. Those letters addressed the information and evidence necessary to substantiate claims for service connection and increased ratings, and informed the Veteran how VA assigns effective dates. The letters also addressed who was to provide the evidence. The claims file contains the Veteran's service medical records, post-service medical records, statements from the Veteran, reports of VA medical examinations, and the transcript of the 2010 hearing. The Veteran has had examinations that were adequate for purposes of rating his CAD. In response to the Board's remand instructions, additional private and VA medical records were obtained, including records from private testing in 2006 that specifically were sought. A new VA examination was performed. The Board is satisfied that there has been substantial compliance with the remand directives, such that the Board may proceed with review of the CAD rating issues. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the CAD rating claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of those claims on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Entitlement to a disability rating higher than 10 percent for CAD prior to March 25, 2008, is denied. Entitlement to a disability rating higher than 30 percent for CAD is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs