Citation Nr: 1316348 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 12-15 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an effective date earlier than May 12, 2010 for a 100 percent disability rating for coronary artery disease. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to July 1955 and from September 1955 to September 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In December 2012, the Board remanded this issue to the agency of original jurisdiction (AOJ), the RO/Appeals Management Center (AMC), for additional development. That development completed, it has been returned to the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. VA first received a claim of entitlement to service connection for a cardiac disability on September 17, 1984. 2. Disability resulting from the Veteran's coronary artery disease did not make ordinary manual labor infeasible prior to April 11, 1985. 3. The Veteran had an acute illness from coronary occlusion beginning on April 11, 1985 and ending on May 9, 1985. 4. For the period from November 9, 1985 to August 1, 1990, the Veteran's coronary artery disease did not make ordinary manual labor infeasible. 5. The Veteran had an acute illness from coronary occlusion beginning on August 1, 1990 and ending on September 23, 1990. 6. The Veteran had an acute illness from coronary occlusion beginning on March 23, 1991 and ending on May 22, 1991. 7. For the period from November 22, 1991 to March 30, 2003, the Veteran's coronary artery disease did not make ordinary manual labor infeasible, did not result in any episodes of congestive heart failure, did not result in dyspnea, fatigue, angina, dizziness, or syncope from a workload of 5 METs or less, and did not result in left ventricular dysfunction with an ejection fraction of 50 percent or less. 8. The Veteran had an acute illness from coronary occlusion beginning on March 30, 2003 and ending on April 3, 2003. 9. For the period from October 3, 2003 to May 12, 2010, the Veteran's coronary artery disease did not make light manual labor infeasible, did not result in any episodes of congestive heart failure, did not result in dyspnea, fatigue, angina, dizziness, or syncope from a workload of 3 METs or less, and did not result in left ventricular function with an ejection fraction of 30 percent or less. CONCLUSIONS OF LAW 1. The criteria have not been met for an effective date of award of service connection for coronary artery disease earlier than September 17, 1984. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.381 (2012). 2. The criteria for a disability rating higher than 30 percent for coronary artery disease have not been met for the period prior to April 11, 1985. 38 U.S.C.A. § 355 (West 1979), § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7005 (1985). 3. The criteria for a 100 percent disability rating have been met for coronary artery disease for the period from April 11, 1985 to November 9, 1985. 38 U.S.C.A. § 355 (West 1979), § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7005 (1985). 4. The criteria for a disability rating higher than 30 percent for coronary artery disease were not met for the period from November 9, 1985 to August 1, 1990. 38 U.S.C.A. § 355 (West 1979), § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7005 (1990). 5. The criteria for a 100 percent disability rating were met for coronary artery disease for the period from August 1, 1990 to November 22, 1991. 38 U.S.C.A. §§ 355 (West 1979), § 1155 (West 1991), § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7005 (1991). 6. The criteria for a disability rating higher than 30 percent for coronary artery disease were not met for the period prior to November 22, 1991 to March 30, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 5005 (1997 & 2002). 7. The criteria for a 100 percent disability rating were met for coronary artery disease for the period from March 30, 2003 to October 3, 2003. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 5005 (1997 & 2003). 8. The criteria for a disability rating higher than 60 percent were not met for the period from October 3, 2003 to May 12, 2010. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 5005 (1997 & 2009). 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), VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, this notice must address the downstream elements of disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473 (2006). It is noted that this is not a case a previously denied claim of entitlement to service connection for heart disease was reopened based on new and material evidence. Rather, as required by 38 C.F.R. § 1116(b) (West 2002) and consistent with Nehmer v. United States Veterans' Administration, 712 F.Supp. 1404 (N.D.Cal.1989) and Nehmer v. U.S. Dept of Veterans Affairs, 494 F.3d 846 (C.A.9 (Cal.) 2007), VA readjudicated the claim without a requirement for new and material evidence. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2010, in response to his claim received that same month. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). All relevant identified treatment records are associated with the claims file. VA provided an examination in May 2010. The report of that examination includes reference to the relevant medical history and the examiner provided a sufficient description of the Veteran's disability due to his cardiac disease. The case is not one requiring a medical opinion. The Board finds that the examination was adequate. See 38 C.F.R. § 4.1 (2012). In the December 2012 Remand, the Board directed the agency of original jurisdiction to contact the Veteran and ask him to identify the names of all providers who treated him for cardiac disease between 1985 and 2002, to secure the necessary releases for VA to assist him in obtaining any additional evidence, to request such evidence, and to readjudicate the issue on appeal. In January 2013, the agency of original jurisdiction sent him a letter in compliance with the Remand directives. The Veteran submitted additional evidence. He did not submit any releases. The agency of original jurisdiction readjudicated the issue in a March 2013 Supplemental Statement of the Case. The Board concludes that there has been compliance with its December 2012 Remand. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Merits The Veteran contends that he has had heart disease since prior to 1972 and that disability due to his heart disease should be rated 100 percent disabling since May 1985. In the instant decision, the Board first addresses the procedural history of this case. It then explains why no benefit is warranted prior to September 17, 1984. Next, it explains how VA rates disabilities, the regulatory rating criteria applicable to the Veteran's disability on appeal, and application of the law and regulations to the facts of this case. Ultimately, the Board grants the appeal as to specific periods of time, but not for the entire period on appeal. In the April 2011 rating decision on appeal, the RO granted service connection for ischemic heart disease/coronary artery disease with history of myocardial infarction (generally referred to by the Board as coronary artery disease) effective September 17, 1984. Pursuant to that decision and a rating decision issued in June 2012, the following ratings have been assigned for this disability: 30 percent from September 17, 1984 to April 28, 1985, 100 percent from April 28, 1985 to September 1, 1985, 30 percent from September 1, 1985 to March 31, 2003, 60 percent from March 31, 2003 to May 12, 2010, and 100 percent beginning on May 12, 2010. The Veteran disagreed with the April 2011 decision, contending that the 100 percent rating should be effective from May 1, 1985. Although the disagreement was stated in terms of a date; it is more accurately a disagreement with the various ratings less than 100 percent that have been staged since service connection was established. The term "staged" means that different ratings have been assigned for different periods of time, based on the facts of the case. Here, those ratings are initial staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v Mansfield, 21 Vet. App. 505 (2008). In his June 2012 substantive appeal, the Veteran expressed his belief "that the effective date of the 100 [percent] disability rating should be changed since I have had ischemic heart disease since at least 1972." Given the June 2012 statement, the Board addresses the date of award of service connection as well as whether higher ratings are warranted for any period on appeal. The AOJ addressed both matters in the May 2010 Statement of the Case and/or the December 2012 Supplemental Statement of the Case. VA first received the Veteran's claim of entitlement to service connection for heart disease on September 17, 1984. In that claim, he reported that he suffered a heart attack in October 1972. This is supported by evidence from West Plains Memorial Hospital. The RO denied his claim in January 1985, he appealed, and the Board denied his appeal in August 1985. He requested that VA reopen the claim in August 1986 and the RO denied that request in October 1986. In March 2010 he again sought service connection for coronary artery disease. The RO granted that claim based on presumptive service connection for veterans exposed to herbicides during the Vietnam War; pursuant to 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012) as implemented by 38 C.F.R. § 3.309(a)(6) and § 3.309(e) (2012). Effective August 31, 2010, ischemic heart disease, such as coronary artery disease, was added to the § 3.309(e) list of presumptively service connected diseases based on herbicide exposure. See 75 Fed. Reg. 53202 (August 31, 2010). In general, service connection cannot be awarded effective prior to the date of an original claim or a claim to reopen a previously denied claim. 38 U.S.C.A. § 5110(a) (West 2002), § 5010 (1979); 38 C.F.R. § 3.400 (q), (r) (2012). Compensation awarded pursuant to an administrative issue cannot be awarded earlier than one year from the date of application or the date of the administrative determination of entitlement, whichever is earlier. 38 U.S.C.A. § 5110(g) (West 2002). However, special provisions apply for presumptive service connection based on exposure to herbicides. Those provisions implement a 1991 consent decree that resulted from Nehmer v. United States Veterans' Administration, 712 F.Supp. 1404 (N.D. Cal. 1989). A regulation specific to assignment of effective dates for establishment of presumptive service connection for diseases based on exposure to herbicides during the Vietnam War is 38 C.F.R. § 3.816. That regulation refers to "Nehmer class members" a term that derives from the case just mentioned. The regulation defines a Nehmer class member to include a Vietnam veteran who has a covered herbicide disease for which VA established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991, other than chloracne. 38 C.F.R. § 3.816(b). In Nehmer v. U.S. Dept of Veterans Affairs, 494 F.3d 846 (C.A.9 (Cal.) 2007), the U.S. Court of Appeals, Ninth Circuit, held that "VA is required to readjudicate the previously filed claims of veterans who suffer from diseases that are determined to be service-connected, pursuant to 38 U.S.C. § 1116(b), and to make retroactive payments to those veterans, in instances in which the determination is made subsequent to September 30, 2002." This invalidated the date restriction of October 1, 2002 in 38 C.F.R. § 3.816. Under 38 C.F.R. § 3.816(c), if VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, then, in general, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose. Here, the Veteran initially filed a claim of entitlement to service connection for heart disease was September 17, 1984, the effective date assigned for award of service connection by the RO. The Veteran does not contend that he filed a claim earlier than that date and there is no earlier claim associated with the claims file. There is no provision for assignment of a date earlier than September 17, 1984. Therefore, the preponderance of evidence is against award of service connection for coronary artery disease earlier than September 17, 1984 and no disability rating can be assigned prior to that date. Now the Board turns to the disability ratings assigned. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 355 (West 1979), § 1155 (West 2002); 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Coronary artery disease is rated based on criteria found at 38 C.F.R. § 4.104, Diagnostic Code 7005. Section 4.104 was revised twice since September 17, 1984. The first revision was effective January 12, 1998. See 62 Fed. Reg. 65207 (December 11, 1997). The second revision was effective September 6, 2006. See 71 Fed. Reg. 52457 (September 6, 2006). The revision effective in 2006 did not alter the criteria applicable to the instant case. The revision effective January 12, 1998 does not specify that it was to have a retroactive effect. Accordingly, the Board will consider the pre-January 12, 1998 criteria and the January 12, 1998 revised criteria and applies the criteria most favorable to the Veteran, although if an award is warranted under the January 12, 1998 revision the award cannot be effective prior to January 12, 1998. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to January 12, 1998, a 100 percent rating was warranted for arteriosclerotic heart disease (which includes coronary artery disease) during and for six months following acute illness from coronary occlusion or thrombosis, with circulatory shock, etc. 38 C.F.R. § 4.104, Diagnostic Code 7005 (1997). A 100 percent rating was also warranted if after six months of such acute illness there were chronic residual findings of congestive heart failure, or angina (chest pains) on moderate exertion, or more than sedentary employment precluded. Id. A 60 percent rating was warranted if, following typical history of acute coronary occlusion or thrombosis as above, or with history of substantiated repeated anginal attacks, more than light manual labor was not feasible. Id. A 30 percent rating was warranted if, following typical coronary occlusion or thrombosis, or with history of substantiated anginal attack, ordinary manual labor was feasible. Id. The criteria effective beginning on January 12, 1998 are based primarily on episodes of congestive heart failure, left ventricular ejection fraction values, and metabolic equivalents (METs). 38 C.F.R. § 4.104 (1998). One MET (metabolic equivalent) 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. Id. When the level of METs at which dyspnea (shortness of breath), 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. Id. at Note (2). Under the revised criteria, a 100 percent rating is assigned for documented coronary artery disease resulting in chronic congestive heart failure, or; if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; if there is left ventricular dysfunction with an ejection fraction less than 30. 38 C.F.R. § 4.104, Diagnostic Code 7005 (1998 & 2012). Under the revised criteria, a 60 percent rating is assigned for documented coronary artery disease resulting in more than one episode of acute congestive heart failure in the past year, or; if a workload of greater than 3 METs but not greater than 5 METs results in dyspnea (shortness of breath), fatigue, angina, dizziness, or syncope, or; if there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. Under the revised criteria, a 30 percent rating is assigned for documented coronary artery disease if a workload 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. Id. Treatment notes from West Plains Hospital document that the Veteran had a myocardial infarction in October 1972. He was admitted to that hospital for one day in October 1975 with a report of vague chest pain. A January 1982 history and physical examination report documents an admission for evaluation in preparation for a weight loss and exercise program. The physician remarked that the Veteran had gotten along quite well since his myocardial infarction. There is no mention of angina. Cardiac stress test at that time was essentially negative. A January 1985 VA examination report documents the Veteran's report of shortness of breath, lack of energy, and chest pains, and that he worked in an administrative capacity at the time. St. John's Regional Health Center (St. John's) treatment notes document that on April 11, 1985 the Veteran had onset of recurrent episodes of substernal tightness, pressure, and breathlessness occurring with minimal exercise. He was admitted on April 28, 1985, and underwent a coronary bypass on May 2, 1985. He was discharged on May 9, 1985 with a final diagnosis of coronary artery disease. Here, the Board notes that the RO has assigned a 100 percent rating for the period from April 28, 1985 to September 1, 1985. In the decision on appeal it referred to the criteria for a 100 percent rating under the pre-January 12, 1998 criteria. The Board agrees that these criteria are applicable. However, the onset of his acute illness from coronary occlusion was April 11, 1985 and that acute illness ended on May 9, 1985. Therefore, the 100 percent rating is warranted from April 11, 1985 to November 9, 1985. Following that hospitalization, the next evidence consists of St. John's treatment notes from a September 21, 1990 admission. Those notes include a description that after the Veteran recovered from the 1985 surgery he did "quite well and had been doing quite well until the first portion of August when he began having some exertional dyspnea and substernal chest pain." He underwent coronary angioplasty on September 21, 1990. Progress notes document his report that prior to developing angina he walked thirty to forty-five minutes per day. He was discharged September 23, 1990 and advised to take it easy for two to three days and then to resume normal activity. On May 17, 1991 he was again admitted to that facility based on complaints of chest pain. Those notes state that the Veteran did well after his 1985 surgery and until August 1990 and that prior to that admission he actively walked thirty-five minutes per day. The notes also state that the Veteran had done well in the past year, which, the Board understands to be between September 1990 and May 1991. The notes document that on the day of his admission he was doing menial office work when he developed pressure and pain. Coronary angiogram revealed a blocked graft and he was treated with angioplasty. An education assessment indicated that he was instructed in a home walking program, and patient goals included to learn to follow a home exercise program building to thirty minutes three to five times per week. He was discharged on May 22, 1991 with instructions to gradually increase activities with no heavy lifting or stair climbing for one week and that he could return to work when okay. November 1996 and January 1997 Springfield Clinic notes signed by "C.W.C.", M.D. of the Cardiology Department, document cardiology follow up. Cardiac examination was unremarkable. The Veteran reported that he was doing well with no problems with angina. This finding was repeated in May 1998, February 1999, August 1999, and February 2000, adding only that he had no problem with dyspnea. In May 2000, he was seen by "H.W.F.," M.D. pursuant to a referral from his treating cardiologist for erectile dysfunction. In a review of systems section of his report, Dr. H.W.F. noted the Veteran's complaint of chest pains and shortness of breath. Although he reported chest pain and shortness of breath in May 1990, reports from the cardiologist, Dr. C.W.C., continued to document that the Veteran had no angina or dyspnea. Notes from March 2001 include the report by a different cardiologist, "D.S.C.," M.D., that the Veteran had done well for the past nine years, was currently doing well, was asymptomatic, and was not having angina or shortness of breath. A September 2001 note from the same cardiology office documented that the Veteran was encouraged to continue physical activity in September 2001. Similar reports of no angina and/or recommendations to exercise continued through September 2002. On March 31, 2003, the Veteran was admitted to St. John's with complaints of chest pain. The evidence just described shows that the Veteran had acute illness from coronary occlusion beginning August 1, 1990 and again beginning May 17, 1991. Thus under the criteria in place at that time, a 100 percent rating was warranted for the periods of acute illness from coronary occlusion and for six months following the acute illness that began in 1990. In this case that is from August 1, 1990, the date of onset of the acute illness from coronary occlusion, to March 23, 1991, six months following that acute illness in 1991. A 100 percent rating would also be warranted from May 11, 1991, the date of onset of the next period of acute illness from coronary occlusion, to November 22, 1991, six months following that period of acute illness. Although there are no reports that he had acute illness from coronary occlusion in the one month and three week period from March 23, 1991 to May 11, 1991, given the short duration from when the six months following the first period of acute illness and the onset of the second period of acute illness, the Board is left with reasonable doubt as to precisely when the acute illness due to occlusion began in 1991. Resolving that doubt in favor of the Veteran, the Board concludes that the 100 percent rating is warranted for the period beginning on August 1, 1990 and ending on November 22, 1991. The evidence discussed above shows that after November 22, 1991 and until March 31, 2003, Veteran's coronary artery disease did not make it infeasible to engage in more than light labor and there were no chronic residual findings of congestive heart failure. Rather, the evidence tends to show that he was asymptomatic during this period. For example, following the 1991 treatment, the report of recommended exercise, walking, and recommendations to return to normal activities shortly following treatment are evidence that ordinary manual labor was feasible and tend to show that disability due to coronary artery disease did not approximate the pre-January 1998 criteria for a rating higher than 30 percent. During this period, there is no evidence that the Veteran' coronary artery disease approximated the criteria revised effective January 12, 1998 for a rating higher than 30 percent. There is no evidence documenting MET workloads or ejection fraction prior to March 31, 2003. Nor does evidence from November 1991 to March 31, 2003 show that the Veteran had any episodes of acute congestive heart failure. In making this determination, the Board has not neglected to consider Dr. H.W.F.'s May 2000 notation of the Veteran's complaint of chest pains and shortness of breath. That report however was preceded and followed by reports from his cardiac health care providers that he was without symptoms. The Board finds those reports from his cardiac health care providers more probative than the single mention of chest pains in Dr. H.W.F.'s note because the cardiac healthcare providers would necessarily be focused on his cardiac symptoms while Dr. H.W.F. did not have that primary focus. Furthermore, it is not clear from Dr. H.W.F.'s report that the mention of chest pains and shortness of breath was other than a report of the Veteran's history; the likelihood of which is demonstrated by the reports from the cardiac healthcare providers. For these reasons the Board concludes that disability due to his coronary artery disease did not approximate applicable criteria for a rating higher than 30 percent for any period from November 22, 1991 to March 30, 2003. As noted above, the Veteran was admitted to the hospital on March 31, 2003 with complaints of chest pain. The discharge summary states that he had been doing well until the day prior to admission. He described chest discomfort occurring on exertion or rest. Cardiac catheterization revealed coronary artery stenosis and occluded graft as well as mild to moderate left ventricular dysfunction with an estimated ejection fraction of 35 to 40 percent. An echocardiogram conducted on April 1, 2003 revealed left ventricular dysfunction with an ejection fraction around 45 percent. He was treated with stent placement and discharged on April 3, 2003. This is evidence of acute illness from coronary occlusion. Hence, under the pre-January 12, 1998 criteria, a 100 percent rating was warranted from March 30, 2003, the date of onset of the acute illness, to October 3, 2003, the date six months after that acute illness ended. The ejection fraction measured in March-April 2003 meets the criteria for a 60 percent rating but as it is not less than 30 percent, nor approaches 30 percent, it does not approximate the criteria for a 100 percent rating under the revised criteria. Following that hospitalization, the next evidence relevant evidence of record are treatment notes from October 2005 through January 2009 documenting that the Veteran was asymptomatic, denied chest pains and shortness of breath, and that he reported that he had no new problems. Of record, is a March 2010 letter in which the Veteran's cardiac health care provider explained that the Veteran had ischemic cardiomyopathy with the last echocardiogram done in 2008. The letter states that echocardiogram showed a left ventricular ejection fraction of 45 to 50 percent and is in agreement with notes from October 2005 to January 2009 showing left ventricular ejection fractions no lower than 44 percent and no higher than 55 percent. February 2010 treatment notes document that the Veteran denied chest pain, chest discomfort, and shortness of breath. The assessment continued to be arteriosclerotic heart disease with stent in 2003 and ischemic cardiomyopathy with mild left ventricular dysfunction. The evidence just described shows that the Veteran's coronary artery disease approximated the criteria for a 60 percent rating under the revised criteria from December 3, 2003 to May 12, 2010, but did not approximate the criteria for a 100 percent rating under any applicable criteria. The reports that he was essentially asymptomatic are evidence against a finding that he was precluded from more than sedentary employment and there were no chronic residual findings of congestive heart failure. The left ventricular dysfunction with ejection fraction of between 44 and 55 percent does not approximate the criteria for a 100 percent rating during this period. There is no evidence that a workload of 3 METs or less resulted in dyspnea, fatigue, angina, dizziness, or syncope. On May 31, 2010, he was admitted to St. John's with a complaint of one to two weeks of shortness of breath, dizziness and then chest pains. This report documents that he was last seen in February 2010 and was doing well at that time with no angina. Of record is the report of a May 12, 2010 cardiac examination provided through VA. This documents the Veteran's report that he could not mow the yard without exhaustion or engage in any kind of manual labor. Echocardiogram results showed an ejection fraction of 40 percent with estimated METs level of 3. These findings approximate the criteria for a 100 percent rating under either the pre-1998 criteria or the post 1998 criteria. The first date that this is shown is May 12, 2010. In a May 2011 letter, Dr. D.S.C. stated that the Veteran had been treated in Dr. D.S.C.'s cardiology clinic since the year 2000 following the retirement of Dr. C.W.C. who had treated him since 1985. Dr. D.S.C. provided a brief history of the Veteran's cardiac condition. He also stated as follows: "In my opinion his cardiac problems are longstanding dating back to the coronary artery bypass graft surgery in 1985 and he has been essentially 100 [percent] disabled since then." The Board has considered this letter but finds it to be less probative than the treatment records already discussed as to whether disability due to the Veteran's coronary artery disease approximated the criteria for ratings higher than those already assigned and discussed in the instant decision. Dr. D.S.C.'s opinion is a conclusion without reference to any data to support a higher rating under VA's regulations. As such it is not evidence that disability due the Veteran's coronary artery disease approximated any applicable criteria for rating the disability. Also considered by the Board are the Veteran's contentions that a 100 percent rating is warranted. He has not provided a basis for those contentions other than that he has had heart disease prior to and during the period on appeal. As ratings assigned depend on application of the regulations already discussed, the existence of coronary artery disease for many years is not a basis for assigning ratings higher than those already assigned. Hence, the Veteran's statements are outweighed by the evidence already discussed. The Board has determined that referral for consideration of a rating outside of those specified in the rating schedule is not warranted. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The schedular rating criteria contemplate the Veteran's symptoms and the degree of his disability for all periods on appeal. His symptoms have been chest pain, shortness of breath, limited ability to engage in activities, and, in one instance, dizziness. The pre-January 12, 1998 criteria specifically refer to angina and the impact of coronary artery disease on the ability to engage in activities in that the ratings are based in part on the ability to engage in different levels of labor. These criteria contemplate a level of disability equal to and greater than what the Veteran has had during the course of his appeal as the criteria provide ratings for up to total disability. It is reasonable to find that the pre-January 12, 1998 criteria encompass shortness of breath and dizziness in that the criteria refer to the general ability to engage in different levels of labor. To the extent that it could be argued that dizziness and shortness of breath are not contemplated, the Board has considered whether the second prong of Thun is met but finds that it is not. There is no evidence of marked interference with employment and the hospitalizations, one in 1985, two in 1990-91 and one in 2003, do not constitute frequent periods of hospitalization. The evidence does not show any related factors similar in kind to marked interference with employment or frequent periods of hospitalization. The criteria revised effective January 12, 1998 specifically address all of the Veteran's symptoms including dizziness and dyspnea. Again, those criteria contemplate all levels of disability suffered by the Veteran as the revised criteria allows for ratings for total disability due to coronary artery disease. For the reasons just discussed, the Board declines to remand this matter for referral for extraschedular consideration. In summary, the proper dates for the 100 percent rating in 1985 are from April 11, 1985 to November 9, 1985; a 100 percent rating is also warranted for the period from August 1, 1990 to November 22, 1991, and for the period from March 30, 2003 to October 3, 2003. The Board's determination as to the period from April 11, 1985 to November 9, 1985 merely broadens the period of time for the 100 percent rating beyond the April 28, 1985 to September 1, 1985 period for which a 100 percent rating was in effect; it does not add a separate 100 percent rating for the periods for which a 100 percent rating was already in effect in 1985. The preponderance of evidence is against a finding that disability due to coronary artery disease has approximated the criteria for ratings higher than already assigned for any other period on appeal, and is against referring the case for extraschedular consideration; there is thus no reasonable doubt to be resolved in this regard. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2011); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A 100 percent disability rating is granted for coronary artery disease for the period from April 11, 1985 to November 9, 1985. A 100 percent rating is granted for coronary artery disease for the period from August 1, 1990 to November 22, 1991. A 100 percent rating is granted for coronary artery disease for the period from March 30, 2003 to October 3, 2003. The appeal is denied as to all other periods of time. ____________________________________________ D.C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs