Citation Nr: 1318135 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-11 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hemorrhoids. 3. Entitlement to an initial rating for coronary artery disease higher than 10 percent before July 26, 2012, and an initial rating higher than 30 percent from July 26, 2012. 4. Entitlement to an initial rating higher than 20 percent for right lower extremity arteriosclerosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Evan M. Deichert, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from December 2003 to February 2005. The Veteran was also in the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in April 2008 and in May 2008 of a Department of Veterans Affairs (VA) Regional Office. In July 2012, the Board remanded the case for further development. On the claim decided herein, no further action to ensure compliance with the Board's remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The claims of service connection for hypertension and for hemorrhoids and the claim for increase for right lower extremity arteriosclerosis are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Before July 26, 2012, coronary artery disease was characterized by a workload of 7 to 10 METs and did not result in cardiac hypertrophy or dilatation. 2. From July 26, 2012, coronary artery disease is characterized by a workload of greater than 5 to 7 METs without acute congestive heart failure or left ventricular dysfunction. CONCLUSIONS OF LAW The criteria for an initial rating for coronary artery disease higher than 10 percent before July 26, 2012, and initial rating higher than 30 percent from July 26, 2012 have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.7, 4.104, Diagnostic Codes 7017 and 7005 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim, namely, (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a claim for increase, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter dated in December 2007 on the underlying claim of service connection for coronary artery disease. Where, as here, service connection has been granted and the initial disability ratings have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for benefits has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable. Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has attempted to obtain the service personnel and treatment records for the period of National Guard service. In November 2012, the RO made a formal finding of unavailability of the requested records. The RO did obtain VA records. The Veteran was afforded VA examinations in February 2008 and in July 2012. As the examination reports contains the medical history and findings, pertaining to the rating criteria, the Board finds that the reports are adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (a medical examination must be based on consideration of the history and describe the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Principles A disability rating is determined by application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as the Veteran's rating has already been staged, the Board must analyze the propriety of both the dates of the stage as well as the disability ratings assigned. Criteria for Rating Coronary Artery Disease Coronary artery disease has been rated 10 percent before July 26, 2012, and 30 percent from July 26, 2012, under 38 C.F.R. § 4.104, Diagnostic Codes 7017 (coronary bypass surgery) and 7005 (coronary artery disease). The rating criteria under either Diagnostic Code 7015 or Diagnostic Code 7005 are the same for a 10 percent rating, a 30 percent rating, and a 60 percent rating. The criteria for a 10 percent rating are a workload of greater than 7 METs but not greater than 10 METs with dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. The criteria for a 30 percent rating are a workload of greater than 5 METs but not greater than 7 METs with dyspnea, fatigue, angina, dizziness, or syncope; or where there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The criteria for a 60 percent rating are more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs with dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. There is no other potentially applicable Diagnostic Code. Evidence On VA examination in February 2008, the Veteran stated that he walked three times a week for 30 minutes. The VA examiner reported that the Veteran had no chronic left ventricular dysfunction and that the ejection fraction of the left ventricle was 65 percent. The VA examiner stated that the Veteran did not have chronic congestive heart failure and the Veteran had no episodes of acute congestive heart failure within the last year. The stress test showed a maximum workload of 13.40 METs. The estimate of the level of activity resulting in dyspnea, angina, dizziness, or syncope was more than 7 METs and up to 10 METS. Continuous medication was required. VA records show that in February 2008, March 2008, and September 2008, the Veteran denied chest pain or shortness of breath. He stated that he exercising three times a week. In October 2008, the ejection fraction was 61 percent. In January 2009, the Veteran remained asymptomatic and he could walk 1 to 1.5 miles a day without symptoms. In July 2010, on a stress test the ejection fraction was 75 percent. On VA examination on July 26, 2012, the Veteran stated that his condition had remained stable with treatment. He denied chest pain or hospitalization since he was last examined. The VA examiner reported that the Veteran had no chronic or acute congestive heart failure, no cardiac arrhythmias, no heart valve conditions, no infectious heart disease, no pericardial adhesions, and no hospitalizations. It was noted that continuous medication was required. The Veteran had a regular heart rate of 65. He had normal heart sounds and normal peripheral pulses. The VA examiner reported that there was no cardiac hypertrophy or dilatation. The VA examiner stated that a workload of 5 to 7 METs would result in dyspnea. Analysis Before July 26, 2012, the Veteran had a workload of 7 to 10 METs before resulting in dyspnea. The workload of 7 to 10 METs does not more nearly approximate or equate to the a workload of greater than 5 METs but not greater than 7 METs with dyspnea, fatigue, angina, dizziness, or syncope, the criteria for the next higher rating under either Diagnostic Code 7017 or Diagnostic Code7005. Also in the absence of evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, the alternate criteria for the next higher rating under either Diagnostic Code 7017 or Diagnostic Code7005, were not met. From July 26, 2012, the Veteran had a workload of 5 to 7 METs before resulting in dyspnea. The workload of 5 to 7 METs does not more nearly approximate or equate to the a workload of greater than 3 METs but not greater than 5 METs with dyspnea, fatigue, angina, dizziness, or syncope, the criteria for the next higher rating under either Diagnostic Code 7017 or Diagnostic Code7005. Also in the absence of evidence of acute congestive heart failure or left ventricular dysfunction with an ejection fraction of 30 to 50 percent, the alternate criteria for the next higher rating under either Diagnostic Code 7017 or Diagnostic Code7005 have not been met. As the preponderance of the evidence is against initial higher ratings and at anytime during the appeal, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability levels and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned ratings are adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's disability level and symptomatology to the Rating Schedule, the degree of disability is s encompassed by the applicable Diagnostic Codes for the Veteran's heart condition. In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology. For this reason, referral for an extraschedular rating is not warranted under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability Since July 2010, the Veteran has been rated 100 percent disabled. Before July 2010, the Veteran did not expressly raise the claim for a total disability and the claim was not reasonably raised by the record. ORDER An initial rating for coronary artery disease higher than 10 percent before July 26, 2012, and an initial rating higher than 30 percent from July 26, 2012, is denied. REMAND On the claim of service connection for hypertension, on VA examination in July 2012, the VA examiner stated that hypertension was not caused by or aggravated by coronary artery disease, because hypertension was diagnosed before coronary artery disease. Apart from whether hypertension was diagnosed before coronary artery disease, aggravation may still be shown if the current hypertension is aggravated by coronary artery disease. As the evidence of record is inadequate to decide this theory of the case, further development under the duty to assist is needed. On the claim of service connection for hemorrhoids, it appears that the record is incomplete and further factual development under the duty to assist is needed. On the claim for increase for right lower extremity arteriosclerosis, in its remand in July 2012, the Board directed that the Veteran be afforded an examination to determine the current level of disability. On VA examination in July 2012, the findings did not cover the criteria for the next higher for right lower extremity arteriosclerosis and a reexamination under the duty to assist is needed. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran either to submit or to authorize VA to obtain on his behalf records of private medical treatment for hemorrhoids before 2008. 2. Obtain VA records before 2008. 3. On the claim of service connection for hypertension, afford the Veteran a VA examination to determine: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that hypertension is aggravated by service-connected coronary artery disease? In formulating the opinion, the VA examiner is asked to address aggravation in the context that the current hypertension, even though it preceded the diagnosis of coronary artery disease, may still be aggravated. The VA examiner is asked to consider that the term "aggravation" means a permanent increase in severity; that is, an irreversible worsening of hypertension beyond its natural clinical course due to the service-connected coronary artery disease as contrasted to temporary or intermittent flare-ups of symptoms. The Veteran's file must be made available to the examiner for review 4. Afford the Veteran a VA examination to determine: a). Whether the Veteran has hemorrhoids, and, if so, b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), that the current hemorrhoids had onset during active duty from December 2003 to February 2005? The Veteran's claims file must be made available to the examiner for review. 5. Afford the Veteran a VA examination to determine the current level of impairment due to right lower extremity arteriosclerosis. The evaluation must include findings, if any, of persistent edema and stasis pigmentation or persistent ulceration. The Veteran's claims file must be made available to the examiner for review. 6. After the above development is completed, adjudicate the claims of service connection, including secondary service connection for hypertension, and the claim for increase for right lower extremity arteriosclerosis. If any benefit sought on appeal is denied, then provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs