Citation Nr: 1307613 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 10-07 692 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for the service-connected coronary artery disease, from June 1, 2008, to July 10, 2012. 2. Entitlement to an initial evaluation in excess of 30 percent for the service-connected coronary artery disease, after July 10, 2012. 3. Entitlement to an initial compensable evaluation for the service-connected hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1986 to May 2008. He had prior unverified active service of 8 years, 7 months and 20 days. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2008 by the RO. In an August 2008 rating decision, the RO granted service connection for coronary artery disease with hypertension and assigned an evaluation of 10 percent, effective on June 1, 2008. In an August 2012 rating decision, the RO increased the rating for the service-connected coronary artery disease to 30 percent disabling, effective on July 10, 2012. In that same rating decision, the RO assigned a separate noncompensable rating for the service-connected hypertension. This increase during the appeal did not constitute a full grant of the benefit sought. Therefore, the Veteran's claims for an increased evaluation for coronary artery disease and hypertension remain on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran was scheduled for a hearing at the RO; however, he failed to report for that hearing. As he has not provided cause for his failure to appear or requested another hearing, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. Prior to July 10, 2012, the service-connected coronary artery disease was shown to have been manifested by an essentially normal workload capacity and the required use of continuous medication. 2. Beginning on July 10, 2012, the service-connected coronary artery disease is shown to be productive of a disability picture that more nearly approximates a workload capacity between 3 and 5 METs. 3. For the period of the appeal, the service-connected hypertension is shown to be manifested by diastolic blood pressure readings that are predominantly less than 100 and systolic blood pressure readings which are predominantly less than 160; while continuous medication is required, the record does not document a history of diastolic pressure of predominantly 100 or more. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial evaluation in excess of 10 percent for the service-connected coronary artery disease, prior to July 10, 2012, are not met. 38 U.S.C.A.§ 1155 (West 2002); 38 C.F.R.§§ 4.1-4.3, 4.6-4.7, 4.104 including Diagnostic Code 7005 (2012). 2. The criteria for the assignment of an initial evaluation in excess of 60 percent for the service-connected coronary artery disease, beginning on July 10, 2012, are met. 38 U.S.C.A.§ 1155 (West 2002); 38 C.F.R.§§ 4.1-4.3, 4.6-4.7, 4.104 including Diagnostic Code 7005 (2012). 3. The criteria for the assignment of an initial compensable rating for the service-connected hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.31, 4.104 including Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 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) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). An April 2008 VCAA letter explained the evidence necessary to substantiate the claims for service connection. This letter also informed the Veteran his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). This appeal arises from a Notice of Disagreement (NOD) with the initial noncompensable rating for service connection for coronary artery disease with hypertension assigned in the August 2008 RO rating decision. This NOD does not give rise to additional duty to notify on the part of VA. Dingess/Hartman, 19 Vet. App. 473; 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises upon receipt of a notice of disagreement). With regard to the duty to assist, the claims file contains service treatment records, post-service treatment records, and the Veteran's written assertions. See 38 U.S.C.A. § 5103A(a)-(d). In addition, the Veteran was afforded two VA examinations to address the severity of his coronary artery disease and hypertension. These examinations were adequate because each was performed by a medical professional based on a solicitation of history and symptomology from the Veteran, and a thorough examination of the Veteran. The examination reports include findings pertinent to the rating criteria. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the claims file that there are additional available relevant records that have not yet been obtained. II. Increased rating Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2012). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. When the schedule does not provide a no percent evaluation in a Diagnostic Code, a no percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2012). The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). III. Coronary artery disease In the August 2008 rating decision, the RO granted service connection for coronary artery disease with hypertension and assigned a 10 percent rating, pursuant to Diagnostic Code 7005, effective on June 1, 2008. Effective on July 10, 2012, his evaluation was increased to 30 percent. One MET (metabolic equivalent) 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 an 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) (2012). Under Diagnostic Code 7005, a 10 percent evaluation is assignable when 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. A 30 percent evaluation is assignable when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent evaluation is assignable when there is more than one episode of acute congestive heart failure in the past year, or; when a 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. A 100 percent rating is assignable for 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. A. Prior to July 10, 2012 According to the criteria, to assign a higher rating higher than 10 percent for this period for the service-connected coronary artery disease, there must be a workload of greater than 5 METs but worse than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope or cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram or x-ray study. The Veteran was afforded a VA examination in April 2008 while still in service. He had previously undergone angiography with three stent replacements and had a history of hypertension and was noted to be on the medication Atenolol. On examination, the Veteran's heart was in normal sinus rhythm. A resting echocardiogram was noted to be normal. A stress test showed his METs to be 10.1, which the examiner indicated was normal. The examiner noted that the Veteran had Type II diabetes mellitus and stated that his heart condition was a complication of the diabetes. However, the examiner noted, the diabetes mellitus did not result in complications of heart failure, shortness of breath, dizziness, chest pain, easy fatigue or fainting attacks. Based on the April 2008 VA examination report that shows that the Veteran was taking continuous medication with a workload greater than 7 mets, the Board finds that the overall disability picture prior to July 10, 2012, did not meet the criteria for an initial rating higher than 10 percent for the service-connected coronary artery disease. The record does not include findings necessary to establish a higher initial evaluation of 30 percent or higher as there is no evidence of record showing that, during this period, the Veteran had a workload of less than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram or x-ray study. B. Beginning on July 10, 2012 According to the criteria, to assign a rating higher than 30 percent for this time period for the service-connected coronary artery disease, more than one episode of acute congestive heart failure in the prior year, a workload of greater than 3 METs but not greater than 5 METs or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A VA examination was conducted in July 2012. At that time, the Veteran reported having tiredness and shortness of breath, but denied chest pain or anginal symptoms. The examiner noted the Veteran's heart condition required continuous medication of Atenolol, lisinopril, aspirin, and nitroglycerine tabs as needed for angina pain. There was no evidence of cardiac hypertrophy or cardiac dilatation. The left ventricular ejection fraction was 58 percent. An echocardiogram performed in January 2010 was noted to have had normal results. An exercise stress test was noted to be abnormal and resulted in a workload capacity of 3 METs. An interview-based METs test resulted in a workload capacity of between 3 and 5 METs resulting in dyspnea and fatigue. This METs level had been found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), brisk walking (4 mph). The examiner indicated that the interview-based METs test most accurately reflected the Veteran's current cardiac functional level. He indicated that the METs level was 20 percent due to heart disease, 50 percent due to diabetes mellitus and 30 percent due to sleep apnea. To the extent that the Veteran's workload capacity is shown to be between 3 and 5 METs with a left ventricular ejection fraction of 58 percent, the Board finds that the service-connected disability picture more closely resembles the criteria for the assignment of 60 percent rating in this case. Hence, in resolving all reasonable doubt in the Veteran's favor, an increased rating of 60 percent is warranted. IV. Hypertension The RO initially granted service connection for hypertension in combination with the Veteran's coronary artery disease. In an August 2012 rating decision, the RO granted a separate noncompensable evaluation for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101. Diagnostic Code 7101 provides that a 10 percent evaluation is assignable when diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or an individual has a history of diastolic pressure that is predominantly 100 or more, which requires continuous medication for control. A 20 percent evaluation is assignable when diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more. A 40 percent evaluation is assignable when diastolic pressure is predominantly 120 or more. A 60 percent evaluation is assignable when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101 (2012). Diagnostic Code 7101 is the most appropriate because it pertains specifically to hypertension, and Note 3 under the diagnostic code provides that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. See 38 U.S.C.A. §38 C.F.R. § 4.104, Diagnostic Code 7101 Note (3). The service-connected hypertension is currently rated at a noncompensable level under Diagnostic Code 7101. In order to obtain the next higher rating, 10 percent, diastolic blood pressure reading must be predominantly 100 or more, or systolic pressure must be predominantly 160 or more, or; a 10 percent rating is also the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The Veteran underwent a VA examination in April 2008. The examiner noted blood pressure readings of 114/75, 120/80, and 116/78. The Veteran reported a 6 year history of hypertension and the use of the medication Atenolol. On VA examination in July 2012, the Veteran had blood pressure readings of 122/76, 120/78, and 124/80. The examiner noted that the Veteran's hypertension has been controlled. Upon review, all of the blood pressure readings taken during the appeal period are not greater than a 100 diastolic measurement or the 160 systolic measurement specified in the ratings criteria. Specifically, the medical records associated with the Veteran's claims file include more than forty individual blood pressure readings during the period in question. Of these, not one reflects a diastolic reading of 100 or more and there are no readings describing a diastolic pressure of 160 or more Moreover, while the Veteran has been prescribed continuous medication for control of his hypertension, he does not have a history of diastolic pressure predominantly 100 or more. In fact, the Veteran's service treatment records and post-service treatment records do not include one finding of diastolic pressure of 100 or more. As the Veteran's diastolic blood pressure has not been measured at 100 or more, and his systolic pressure has not been measured of 160 or more, and the Veteran does not have a history of diastolic pressure of 100 or more that is controlled by medication, the service-connected hypertension do not meet the criteria for a compensable rating. Accordingly, the criteria for an initial compensable disability rating for the service-connected hypertension have not been met. V. Extraschedular Considerations The Board has also considered whether referral for extraschedular consideration is warranted, but finds that it is not. The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If it is determined that this is so, the second step of the inquiry requires a determination of "whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires referral of the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extraschedular rating is warranted. Id. With respect to the initial inquiry posed by Thun, the Board finds that the Veteran's disability level and symptomatology are adequately described by the rating criteria. Without evidence reflecting that the Veteran's disability picture is so "exceptional or unusual," such that the available criteria for his disabilities are inadequate, referral for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating is not warranted. Thun, supra. ORDER An increased rating in excess of 10 percent for the service-connected coronary artery disease, prior to July 10, 2012 is denied. An increased rating of 60 percent, but not higher, for the service-connected coronary artery disease, beginning on July 10, 2012 is granted, subject to the regulations controlling disbursement of VA monetary benefits. An initial compensable rating for the service-connected hypertension is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs