Citation Nr: 1318289	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  05-26 014	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for chronic obstructive pulmonary disease.

2.  Entitlement to service connection for sleep apnea.

3.  Entitlement to service connection for left knee arthritis, to include as secondary to service-connected right knee osteoarthritis.

4.  Entitlement to an initial rating in excess of 30 percent for coronary artery disease status post bypass surgery associated with hypertension from February 18, 2004, to July 7, 2010.  

5.  Entitlement to a rating in excess of 60 percent for coronary artery disease status post bypass surgery associated with hypertension from July 8, 2010.

6.  Entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II.

7.  Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder with major depressive disorder.

8.  Entitlement to an effective date prior to April 27, 2012, for the award of entitlement to service connection for posttraumatic stress disorder with major depressive disorder.  


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney at Law


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran had active service from November 1966 to October 1969.  These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied entitlement to service connection for coronary artery disease (CAD).

The Veteran had informal conferences with a Decision Review Officer (DRO) in June 2005 and December 2005.

In an October 2008 decision, the Board, in pertinent part, denied the claim for entitlement to service connection for CAD.  The Veteran then appealed that denial to the United States Court of Appeals for Veterans Claims (the Court).  The parties filed a Joint Motion for Remand (Joint Motion) in November 2009, which was granted by Order of the Court that same month, and accordingly, the appeal was remanded to the Board for further consideration.  The Board remanded the matter for additional development and readjudication in June 2010.  

Shortly thereafter, in the September 2010 DRO rating decision, the DRO granted entitlement to service connection for CAD status post bypass surgery associated with hypertension and assigned an initial 30 percent evaluation for that disability, effective February 18, 2004.  

A March 2012 DRO rating decision increased the disability rating for the Veteran's service-connected CAD status post bypass surgery associated with hypertension from an initial 30 percent to 60 percent, effective July 8, 2010.  However, the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation.  AB v. Brown, 6 Vet. App. 35 (1993).

The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ."  In May 2012, additional VA treatment records dated from February 2012 to May 2012 were uploaded to Virtual VA after the issuance of the last supplemental statement of the case (SSOC) for the increased rating claims for the Veteran's service-connected heart disability in March 2012.  The Board has reviewed the additional evidence but finds that the VA treatment notes consist of evidence that is not pertinent to the claims currently on appeal.  It is also important to note that there would be no prejudice to the Veteran as his claim for an increased rating for his service-connected heart disability is being granted and a 100 percent rating is being assigned from February 3, 2009, in the decision below.  The Board therefore concludes that there is no prejudice in proceeding with consideration of this case without affording the RO an opportunity to issue a SSOC.

In a November 2012 statement, the Veteran's attorney indicated that the Veteran did not wish to attend any hearing and revoked any and all hearing requests of record.

The issues of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), and entitlement to an effective date prior to April 27, 2012, for the award of entitlement to service connection for PTSD with MDD are remanded to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  In November 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to service connection for chronic obstructive pulmonary disease was requested.

2.  In November 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to service connection for sleep apnea was requested.

3.  In November 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the appeal for entitlement to service connection for left knee arthritis, to include as secondary to service-connected right knee osteoarthritis, was requested.

4.  From February 18, 2004, to February 2, 2009, the Veteran's residuals of CAD status post bypass surgery associated with hypertension continue to more nearly approximate a workload of greater than 5 METs (metabolic equivalent) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray.  

5.  From February 3, 2009, CAD status post bypass surgery associated with hypertension was manifested by a workload of 3 METs or less that resulted in dyspnea, fatigue, angina, dizziness, or syncope.



CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal of entitlement to service connection for chronic obstructive pulmonary disease have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012).

2.  The criteria for withdrawal of the appeal of entitlement to service connection for sleep apnea have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012).

3.  The criteria for withdrawal of the appeal of entitlement to service connection for left knee arthritis, to include as secondary to service-connected right knee osteoarthritis, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2012).

4.  From February 18, 2004, to February 2, 2009, the criteria for an initial evaluation in excess of 30 percent for CAD status post bypass surgery associated with hypertension have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.100, 4.104, Diagnostic Codes 7007, 7015 (2012).

5.  From February 3, 2009, the criteria for 100 percent evaluation for CAD status post bypass surgery associated with hypertension have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.100, 4.104, Diagnostic Codes 7007, 7015 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of Claims for Entitlement to Service Connection

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id. 

In this case, the Veteran submitted a substantive appeal pertaining to the issues of entitlement to service connection for chronic obstructive pulmonary disease, bilateral knee arthritis, and sleep apnea in July 2005.  In an October 2008 decision, the Board, in pertinent part, denied the claims for entitlement to service connection for sleep apnea and chronic obstructive pulmonary disease as well as remanded the claim for entitlement to service connection for bilateral knee arthritis for additional development.  The Veteran then appealed that denial to the Court.  The parties filed a Joint Motion in November 2009, which was granted by Order of the Court that same month, and accordingly, the appeal was remanded to the Board for further consideration.  The Board remanded these service connection claims for additional development and readjudication in June 2010.  However after receiving the June 2012 SSOC which included those issues, the Veteran submitted an October 2012 statement withdrawing those appeals that was received by the Board in November 2012.  

In the present case, the Veteran has withdrawn these appeals and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed.

Increased Evaluation Claims for Service-Connected Heart Disability 

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  

Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  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). 

The Veteran's claims of entitlement to initial increased evaluations for CAD arises from his disagreement with the initial evaluation assigned following the grant of service connection.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed.  In addition, from February 3, 2009, the Board is taking action favorable to the Veteran by granting in full the issue at hand during that time period.

The duty to assist the Veteran has been satisfied in this case.  The RO has obtained the Veteran's service treatment records, service personnel records, and his identified private and VA treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Moreover, the Veteran has been afforded a VA examination that is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Specifically, the February 2009 VA examiner took into account the Veteran's statements and treatment records, which allowed for a fully-informed evaluation of the claimed disability.  Id.  

As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record.  See Pelegrini, 18 Vet. App. at 120.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4 (2012).  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2012).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  

The Veteran seeks an increased evaluation for his service-connected heart disability.
As noted above, the Veteran's service-connected CAD status post bypass surgery associated with hypertension was initially rated as 30 percent from February 18, 2004, to July 7, 2010, and as 60 percent from July 8, 2010, pursuant to 38 C.F.R. § 4.104, Diagnostic Codes 7007-7015 (2012).  The hyphenated diagnostic code indicates that hypertensive heart disease under Diagnostic Code 7007 is the service-connected disorder and atrioventricular block, under Diagnostic Code 7015, is a residual condition.  38 C.F.R. § 4.27 (2012). 

Under Diagnostic 7007, a 30 percent rating is assigned when the disability results in a workload of greater than 5 METs (metabolic equivalent) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray.  A rating of 60 percent is assigned when a veteran has had more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A rating of 100 percent is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, Diagnostic Code 7007 (2012).  Other Diagnostic Codes for evaluating diseases of the heart have nearly identical rating criteria.  See 38 C.F.R. §§ 4.100, 4.104, Diagnostic Codes 7000 - 7006, 7015 - 7020.

One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.  When the level of METs at which dyspnea, 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, so contraindicated, 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).

When evaluating disabilities of the cardiovascular system under Diagnostic Codes 7000-7007, 7011, and 7015-7020, it must be ascertained in all cases whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication.  38 C.F.R. § 4.100(a) (2012).  METs testing is also required in all cases except:  (1) when there is a medical contraindication; (2) when the left ventricular ejection fraction has been measured and is 50 percent or less; (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; (4) when a 100 percent evaluation can be assigned on another basis.  38 C.F.R. § 4.100(b) (2012).  If left ventricular ejection fraction (LVEF) testing is not of record, the cardiovascular disability must be based on the alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability.  38 C.F.R. § 4.100(c) (2012).  

February 18, 2004 to February 2, 2009

Evidence of record detailed that the Veteran underwent coronary artery bypass graft times four in August 2002.  A November 2003 private echocardiogram report from Northland Cardiology revealed mild concentric left ventricular hypertrophy with a LVEF of approximately 50 - 55 percent.  A November 2003 private chest X-ray showed a normal cardiac silhouette.  A November 2003 treatment record from M. E. G., M. D. listed an impression of severe, multilevel CAD and essential hypertension.  

The Veteran filed a claim for entitlement to service connection for CAD in February 2004.  

A May 2005 private nuclear medicine SPECT myocardial imaging report showed that ejection fraction (EF) was calculated at 43 percent.  A March 2006 VA echocardiogram report listed an assessment of mild to moderate aortic stenosis and moderate left ventricular hypertrophy (LVH).  EF was listed as 65 percent.  A March 2007 VA cardiology note listed the Veteran's EF as 60 percent and assessed aortic stenosis.  A May 2007 VA cardiovascular stress report showed conclusions including mildly to moderately impaired left ventricular systolic function (LVEF = 43 percent) and no reported symptoms suggestive of angina.

A June 2007 VA cardiac diagnostic and therapeutic procedure report, including left heart catheterization, revealed a final diagnosis of preserved left ventricular systolic function with an EF estimated to be 55 percent.  Evidence of record detailed that the Veteran underwent another heart surgery in July 2007 for aortic valve replacement (AVR) and aortic root dilatation.  A September 2007 VA echocardiogram report to assess left ventricular function showed mild to moderate LVH with LVEF listed at 55 percent. 

The preponderance of the evidence is against the assignment of an initial evaluation in excess of 30 percent from February 18, 2004, to February 2, 2009.  As an initial matter, while the Board is cognizant that isolated private SPECT testing in May 2005 and VA stress testing in May 2007 showed LVEF at 43 percent, the Veteran's ejection fraction has routinely been measured above 50 percent on multiple occasions during this time period from 2003 to 2007.  Thus, evidence of record does not show that the Veteran's EF has been assigned primarily between 30 and 50 percent during this time period, as argued by the Veteran's attorney in his September 2012 and January 2013 statements.  

In September 2012, the Veteran's attorney also submitted an article from the Center for Disease Control (CDC) that discussed physical activity trends in the United States from 1990 to 1998.  Table 1 in that article showed metabolic expenditure values used for calculating intensity of leisure-time physical activity and aerobic classification of various activities under the Behavior Risk Factor Surveillance System.  The table listed an assigned metabolic expenditure value of 3.5 for walking.  In September 2012 and January 2013 statements, the Veteran's attorney referenced the CDC article, noted the Veteran's complaints of difficulty walking for even small distances, and argued that the Veteran should be assigned a 60 percent rating during this time period based on estimations from the CDC article. 

The Board is cognizant that the Veteran has complained of several symptoms like dyspnea on exertion, ability to walk a block or 1/2 a block with difficulty, shortness of breath, and fatigue in during this time period.  However, a detailed review of the evidence of record did not show any treatment provider had assessed or estimated the Veteran's METs level during this time period.  The Board notes that those assessments and estimations are essentially medical in nature.  38 C.F.R. § 4.104, Note (2).  The Board is prohibited from exercising its own independent judgment to resolve medical questions.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  In addition, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion.  Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998) (medical treatise evidence discussed generic relationships with a degree of certainty to establish a plausible causality of nexus); Mattern v. West, 12 Vet. App. 222, 228 (1999).  Here, the CDC article associated with the file by the Veteran's attorney does not specifically relate to the facts and circumstances surrounding the Veteran's particular case and is found to have no probative value.

Based on the foregoing, an initial evaluation in excess of 30 percent from February 18, 2004, to February 2, 2009, for CAD status post bypass surgery associated with hypertension is not warranted.  See 38 C.F.R. § 4.104, Diagnostic Codes 7007, 7015. 

For the Time Period from February 3, 2009

In a February 2009 VA heart examination report, the Veteran complained of once annual syncope, dyspnea on moderate exertion, and daily fatigue, angina, and dizziness.  The examiner noted that there had been one episode of congestive heart failure in the last 12 months and that the last cath (cardiac catheterization) conducted by VA in May 2007 showed mild to moderately impaired left ventricular systolic function with left ventricular ejection fraction (LVEF) equaling 43 percent.  The examiner noted that stress testing was not required on veterans with an ejection fraction below 50percent but did estimate that the Veteran could only tolerate activity up to 2 METs.  The examiner reported that the Veteran must sit during any prolonged activity.  After reviewing the claims file and examining the Veteran, the examiner diagnosed atherosclerotic heart disease.  

In a June 2009 VA cardiology consult, the Veteran reported being able to walk about a block with cane, able to work in the garage, and being limited due to knee and back pain.  He denied chest discomfort and need for nitroglycerin and indicated that his shortness of breath had improved over one year ago.  He denied chest pain, angina, dizziness, increasing shortness of breath, palpations, ankle edema, and syncope.  A December 2009 VA cardiology note showed the Veteran was seen for routine follow-up for CAD and hypertension.  He denied chest pain, use of nitroglycerin (NG) in more than three months, lightheadedness, and leg swelling.  He reported being able to walk about half a block before having to catch his breath.  

Additional VA treatment records dated from 2010 to 2012 revealed continued treatment for CAD status post bypass graft and hypertension.  In a June 2011 VA cardiology treatment record, the Veteran was noted to deny increased shortness of breath and edema.  It was indicated that he was not very active due to joint pain with activity.  A July 2010 VA echocardiogram report revealed mildly impaired left ventricular systolic function with LVEF that was estimated to be 40 - 45 percent.  A March 2011 VA treatment provider indicated that the Veteran's left ventricular (LV) systolic function was only mildly impaired with the recorded EF from 40 - 45percent.  An October 2011 VA echocardiographic studies report revealed LVEF that was estimated to be 50 percent.  The left ventricular function was noted to be borderline. 

The Board is cognizant that the Veteran has not been shown to suffer from chronic congestive heart failure or have a left ventricular dysfunction with an EF fraction of less than 30 percent.  As noted above, METs testing is required when the left ventricular ejection fracture has been measured and is 50percent or less.  38 C.F.R. § 4.100(b) (2012).  However, while the February 2009 VA examiner did not conduct METs testing, he did specifically estimate that the Veteran could only tolerate activity up to 2 METs.  The Veteran was also noted to complain of dyspnea on moderate exertion as well as daily fatigue, angina, and dizziness in the February 2009 VA heart examination report.  He further reported being short of breath after walking 1/2 of a block during this time period.  Resolving all doubt in the Veteran's favor, the Board finds that a 100 percent evaluation for CAD status post bypass graft with hypertension is warranted for the time period from February 3, 2009, as evidence of record showed a workload of 3 METs or less was estimated by a treatment provider and resulted in symptoms like dyspnea.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999).  As noted above, a 100 percent evaluation is the maximum evaluation under Diagnostic Codes 7007 and 7015 and is warranted for severe residuals of hypertensive heart disease and atrioventricular block.  38 C.F.R. § 4.104, Diagnostic Codes 7007, 7015. 

For Both Time Periods

Consideration has been given to other potentially applicable diagnostic codes.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  But most of the diagnostic codes for diseases of the heart are rated identically to hypertensive heart disease, atrioventricular block, and coronary bypass surgery residuals.  See 38 C.F.R. § 4.104, Diagnostic Codes 7000-7007, 7011, 7015-7016, 7020 (2012).  In addition, there is no evidence of record indicating hyperthyroid heart disease, supraventricular arrhythmias, implantable cardiac pacemaker, or cardiac transplantation.  See 38 C.F.R. § 4.104, Diagnostic Codes 7008, 7010, 7018, 7019 (2012).  Accordingly, no other diagnostic codes are for application during either time period.

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  38 C.F.R. §§ 4.20, 4.27 (2012).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  Nonetheless, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2012). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available scheduler evaluations for that service-connected disability are inadequate.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical.").  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned scheduler evaluation is, therefore, adequate, and no referral is required. 

The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the assigned ratings inadequate.  The Veteran's service-connected heart disability is evaluated as residuals of hypertensive heart disease and atrioventricular block pursuant to 38 C.F.R. § 4.104, Diagnostic Codes 7007-7015, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability.  During the appeal period, evidence of record shows that the Veteran's CAD status post bypass graft with associated hypertension has been manifested by dyspnea, fatigue, angina, dizziness, or syncope and evidence of cardiac hypertrophy on echocardiogram from February 18, 2004, to February 2, 2009, and by an estimated workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope from February 3, 2009.  When comparing these disability pictures with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability pictures represented by the assigned 30 percent and 100 percent disability ratings.  Higher ratings are provided for by the regulations for certain manifestations of CAD, but the medical evidence for the time period prior to February 3, 2009, demonstrates that those manifestations are not present.  The criteria for the assigned 30 percent and 100 percent evaluations reasonably describe the Veteran's disability levels and symptomatology throughout the pendency of this appeal.  Consequently, the Board concludes that the schedular evaluations are adequate and that referral of the Veteran's case for extraschedular consideration is not required.  See 38 C.F.R. § 4.104, Diagnostic Codes 7007-7015; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). 

An October 2012 rating decision uploaded to the Veteran's Virtual VA efolder showed that entitlement to a total disability rating based on individual unemployability was awarded from July 8, 2010.  Therefore, the question of entitlement to a total disability rating based on individual unemployability is not before the Board.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 

After reviewing of the evidence of record, there is no evidence that would warrant the assignment of an initial rating in excess of 30 percent for the Veteran's service-connected CAD status post bypass surgery associated with hypertension from February 18, 2004, to February 2, 2009.  38 U.S.C.A. § 5110 (West 2002); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In addition, a 100 percent evaluation for CAD status post bypass surgery associated with hypertension has been awarded herein for the time period from February 3, 2009.  While there have been day-to-day fluctuations in the manifestations of the Veteran's service-connected heart disability, the evidence shows no other distinct periods of time since service connection became effective during which the Veteran's heart disability has varied to such an extent that a rating greater or less than the initial 30 percent evaluation previously assigned and the 100 percent assigned herein would be warranted.  Cf. 38 C.F.R. § 3.344 (2012) (VA will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations).

Finally, in reaching this decision the Board considered the doctrine of reasonable doubt; however, as discussed above, the preponderance of the evidence is against the assignment of an initial evaluation in excess of 30 percent from February 18, 2004, to February 2, 2009, the doctrine is not for application.  In addition, a 100 percent evaluation for CAD status post bypass surgery associated with hypertension has been awarded for the time period from February 3, 2009.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Fenderson, 12 Vet. App. at 126.


ORDER

The appeal for entitlement to service connection for chronic obstructive pulmonary disease is dismissed.

The appeal for entitlement to service connection for sleep apnea is dismissed.

The appeal for entitlement to service connection for left knee arthritis, to include as secondary to service-connected right knee osteoarthritis, is dismissed.

For the time period from February 18, 2004, entitlement to an initial rating in excess of 30 percent for CAD status post bypass surgery associated with hypertension is denied.  

For the time period from February 3, 2009, a 100 percent evaluation for CAD status post bypass surgery associated with hypertension is granted, subject to the laws and regulations governing the payment of monetary benefits. 


REMAND

The Board's review of the claims file reveals that further development on the issues of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, entitlement to an initial rating in excess of 70 percent for PTSD with MDD, and entitlement to an effective date prior to April 27, 2012, for the award of entitlement to service connection for PTSD with MDD is warranted.

A May 2012 DRO rating decision granted service connection for diabetes mellitus, type II and assigned a 20 percent disability rating, effective February 18, 2003.  It also granted service connection for PTSD and MDD and assigned a 70 percent disability rating, effective April 27, 2012.  In September 2012, the Veteran's attorney filed a statement in which he indicated that he disagreed with assigned disability rating and effective date for his service-connected PTSD with MDD as well as the assigned disability rating for his service-connected diabetes mellitus, Type II.  This serves as a timely notice of disagreement with respect to the initial disability ratings assigned for the right knee disability as well as the effective date assigned for the award of service connection for PTSD with MDD.  In a January 2013 statement, the Veteran's attorney confirmed his disagreement concerning those matters. 

Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for the issuance of a statement of the case.  See Manlincon v. West, 12 Vet. App. 238 (1999).  On remand, therefore, the Veteran must be provided a statement of the case that addresses the issues of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, entitlement to an initial rating in excess of 70 percent for PTSD with MDD, and entitlement to an effective date prior to April 27, 2012, for the award of entitlement to service connection for PTSD with MDD.  The Veteran must be notified of the time limit within which a substantive appeal must be filed in order to perfect an appeal on the issues to secure appellate review by the Board.

Accordingly, the case is remanded for the following action:

The RO must issue a statement of the case and notification of the Veteran's appellate rights on the issues of entitlement to an initial rating in excess of 20 percent for diabetes mellitus, type II, entitlement to an initial rating in excess of 70 percent for PTSD with MDD, and entitlement to an effective date prior to April 27, 2012, for the award of entitlement to service connection for PTSD with MDD.  38 C.F.R. § 19.26 (2012).  The Veteran and his attorney are reminded that to vest the Board with jurisdiction over the increased rating and earlier effective date issues, a timely substantive appeal for those matters must be filed.  38 C.F.R. § 20.202 (2012).  If the Veteran perfects the appeal as any of these issues, the case must be returned to the Board for appellate review.

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs