Citation Nr: 1324440 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 09-43 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable evaluation for nonspecific cardiac symptoms. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from October 1995 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Louisville, Montgomery, Alabama, that continued a noncompensable evaluation for nonspecific cardiac symptoms. In his October 2009 substantive appeal, the Veteran requested an opportunity to testify at a hearing before a Veterans Law Judge at the local regional office. He was scheduled for a hearing in June 2013 but failed to report. Since that time, he has not requested another opportunity to testify. As such, the Board finds that the Veteran has withdrawn his request to testify. 38 C.F.R. § 20.704. FINDINGS OF FACT 1. Prior to March 31, 2010, the Veteran's service-connected nonspecific cardiac disability was manifested by METS of 12 and ejection fraction of 55%. 2. From and after March 31, 2010, the Veteran's cardiac disability was manifested by estimated METs of 7-8 and dyspnea upon exertion. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for nonspecific cardiac symptoms prior to to March 31, 2010 have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005 (2012). 2. The criteria for a 10 percent evaluation for evaluation for nonspecific cardiac symptoms from and after March 31, 2010 have been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to 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, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, No. 08-7150, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009). Here, the Veteran was sent a letter dated in August 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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. Increased rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial evaluation assigned after the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged ratings" is required. See Fenderson v. Brown, 12 Vet. App. at 126. In this regard, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The Board notes that, in the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as the Veteran's relevant medical history, the current diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Where a Veteran has been diagnosed as having a specific condition and the diagnosed condition is not listed in the Ratings Schedule, the diagnosed condition will be evaluated by analogy to closely-related diseases or injuries in which not only the functions affected, but the anatomical localizations and symptomatology, are closely analogous. 38 C.F.R. § 4.20. In this case, the Veteran is service-connected for nonspecific cardiac symptoms, evaluated as noncompensable under Diagnostic Code 7099-7005. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. Arteriosclerotic heart disease (coronary artery disease) resulting in workload of greater than 7 METs (metabolic equivalent) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. 38 C.F.R. § 4.104, Diagnostic Code 7005. Arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. Id. Arteriosclerotic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent, is rated 60 percent disabling. Id. Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent, is rated 100 percent disabling. Id. For rating diseases of the heart, 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 rating, 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. 38 C.F.R. § 4.104, Note 2. The medical evidence in this case consists of outpatient treatment records and VA examinations dated in August 2008 and March 2010. The August 2008 VA examiner noted the Veteran's medical and military history for the record. The Veteran reported symptoms of chest pain and discomfort on a daily basis with occasional radiation to his shoulder, but with no radiation to his jaw. He denied nausea, vomiting or diaphoresis. He complained of some intermittent dizziness and dyspnea on exertion (with some also intermittently at rest), but denied syncope. He denied any history of myocardial infarction, congestive heart failure, or rheumatic heart disease, and stated that he never had angioplasty, stents, cardiac catheterization, coronary artery bypass graft, valve surgery or transplants. The Veteran was not taking any medication. He had a normal Holter monitor and stress test in 2004, as well as normal echocardiograms, the most recent of which was dated in July 2008. Cardiac examination revealed regular rate and rhythm, and no murmurs, rubs or gallops. There was no JVD, and PMI was at the first left intercostals space and midclavicular line. Peripheral pulses were symmetrically intact without evidence of peripheral vascular disease. The Veteran underwent echocardiogram in August 2008 that indicated normal functioning. An August 2008 EKG indicated NSR with sinus arrhythmia, and indications of right ventricular conduction delay, voltage criteria for LVH. It was noted that this may be a normal variant. There was also nonspecific ST T wave abnormality and the Veteran was indicated to have an abnormal EKG. Stress test in September 2008 was indicated to be adequate based on METS achieved (12) and good functional capacity. After examination, the examiner indicated that the Veteran was positive for ischemia by EKG criteria. The Veteran was assessed with coronary artery disease, ejection fraction 55%, METS 12. The Veteran was again examined by VA in March 2010. He reported that, since the last examination, his cardiac episodes were less frequent but were more intense. The Veteran reported symptoms such as palpitations, as well as a sensation of something coming up to the throat from the left side of the chest, with weakness, dizziness, and lightheadedness. The Veteran had these symptoms about once a month for 10-15 seconds each episode. There was no angina or syncopal episodes, but the Veteran reported fatigue at the end of the day. He would also experience dyspnea with exertion. There was no history of myocardial infarction, congestive heart failure, rheumatic heart disease, angioplasty, stenting, bypass or valvular surgery, or cardiac catheterization. Echocardiogram performed in September 2009 indicated normal cardiac chambers, normal left ventricle wall thickness, and normal left ventricular systolic function, with an ejection fraction of 70%. Holter monitor in September 2009 reported basic rhythm, normal sinus rhythm, and no ventricular ectopic beats. One supraventricular ectopic beat was present. Symptoms recorded in the diary included dizziness, chest discomfort, and pain. It was noted that there was no correlation with the Holter findings. At the time of the March 2010 examination, a stress test could not be performed due to the Veteran's history of chronic back pain and dyspnea with exertion. Estimated METS level was 7-8, with the examiner noting that the Veteran was able to walk 1 to 2 miles and play basketball. The Veteran had been seen in July 2009 and had a nuclear stress test that was normal, and there was no history of myocardial ischemia or infarction. A cardiac follow-up in September 2009 noted normal left ventricular systolic function and Holter normal sinus rhythm. The diagnosis was noted as chest wall pain. The Veteran was diagnosed with nonspecific cardiac symptoms. A review of the Veteran's outpatient records indicated findings no worse than those noted in the VA examination reports above. Based on the foregoing, the Board finds that prior to March 31, 2010, a compensable evaluation is not warranted to the Veteran's disability. However, on and after March 31, 2010, the medical evidence indicates that the Veteran's disability more nearly approximates a 10 percent evaluation. As noted above, prior to the March 31, 2010 VA examination, the Veteran's service-connected nonspecific cardiac symptoms were manifested by METS of 12 and ejection fraction of 55%. This warrants only a noncompensable evaluation. From and after March 31, 2010, the Veteran's disability was manifested by estimated METs of 7-8. He was also indicted to have dyspnea upon exertion. A 10 percent evaluation is warranted where the disability results in workload of greater than 7 METs (metabolic equivalent) but not greater than 10 METs with dyspnea, fatigue, angina, dizziness, or syncope. In this case, the Board notes that the March 2010 examiner did not perform a stress test but instead estimated the METs at 7-8. The examiner stated that this was due to the Veteran's history of chronic back pain and dyspnea with exertion. Affording the Veteran the benefit of the doubt, the Board finds that this finding meets the requirement for a 10 percent evaluation from and after the date of this finding. The Board does not find additional staged ratings to be appropriate during the time period on appeal. See Hart, supra. The Board notes that the VA examinations of the Veteran were not conducted with the benefit of reviewing the claims file. However, even if the claims file had not been available, the Board notes that the Court in Mariano v. Principi, 17 Vet. App. 305, 311-12 (2003), held that scientific tests (range of motion measurements in that case) are not conclusions drawn by a VA examiner that would be affected by review of the claims file. As a result, the Court concluded that the failure to review the Veteran's claims file did not undermine the objective (range of motion) findings recorded by the VA examiner; these findings were considered valid despite flaws in the record. Id. A review of the Veteran's claims file, while desirable, was not necessary to the successful evaluation of the Veteran's claim. In addition, with respect to the Veteran's claim, the Board has also considered the statements that his disability is worse than evaluated. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. The Board also notes that the record does not establish that the schedular criteria are inadequate to evaluate the Veteran's disability so as to warrant assignment of a higher evaluation on an extra-schedular basis. In this regard, the Board notes that there is no showing that the Veteran's disability has resulted in marked interference with employment (beyond that contemplated in the rating criteria). In addition, there is no showing that the disability has necessitated frequent periods of hospitalization, or that it has otherwise rendered impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board finds that the criteria for submission for assignment of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In this case, the Veteran does not meet the numerical criteria set forth above, and the claims file does not indicate that he is unemployable due to his service-connected disability. Therefore, further consideration of a TDIU is not warranted at this time. ORDER A compensable evaluation for nonspecific cardiac symptoms prior to March 31, 2010, is denied. A 10 percent evaluation for nonspecific cardiac symptoms is granted from and after March 31, 2010, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs