Citation Nr: 1326149 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 07-21 629 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to a higher initial disability rating for coronary artery disease, status-post stenting, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to October 1967, including service in Vietnam; and his decorations include the Purple Heart Medal. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2006 decision of the RO that, in pertinent part, granted service connection for coronary artery disease, status-post stenting, evaluated as 30 percent disabling effective January 9, 2006. The Veteran timely appealed for a higher initial rating and for an earlier effective date. These are the only issues that were perfected on appeal. In June 2007, the RO assigned an earlier effective date of January 20, 2005, for the award of service connection and compensation for coronary artery disease, status-post stenting, on the basis of a clear and unmistakable error. In a June 2011 decision, the Board denied an effective date earlier than January 20, 2005; and remanded the matter for a higher initial rating for coronary artery disease, status-post stenting, for additional development. The matter was again remanded in November 2011. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that there appeared to be some discrepancy regarding who actually represented the Veteran, and that the Veteran was asked in June 2013 to clarify representative. In response, the Veteran filed a VA Form 21-22 later that same month, designating a recognized organization as his representative. See 38 C.F.R. § 20.602. The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, a TDIU has already been awarded. Lastly, in addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. Recently associated VA treatment records are either duplicative, unrelated to the claim on appeal, or have no bearing on the adjudication of the claim on appeal; and, hence, are not "pertinent." Accordingly, referral to the RO of this evidence is not required, and a remand for consideration of this evidence is unnecessary. 38 C.F.R. §§ 19.37, 20.1304 (2012). The issues of service connection for nerve damage of the left hand and injury to muscle groups VII, VIII, and IX; for hypertension; and for a right hand disability, have been raised by the record (February 2011 correspondence), but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred again to the AOJ for appropriate action. FINDING OF FACT Throughout the course of the rating period on appeal, the Veteran's coronary artery disease, status-post stenting, has not involved more than one episode of acute congestive heart failure in any year; or a workload of greater than 3 METs (metabolic equivalents) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for coronary artery disease, status-post stenting, are not met or nearly approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.104, Diagnostic Code 7005 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that 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). The Board concludes that VA's duty to assist has been satisfied. All available records identified by the Veteran as relating to the claim for a higher initial disability rating have been obtained, to the extent possible. The RO or VA's Appeals Management Center (AMC) provided the Veteran with VA examinations, and there is no evidence indicating that there has been a material change in the severity of the Veteran's disability since he was last examined. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 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 closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012). The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is also competent to report symptoms of angina, shortness of breath, fatigue, dizziness, or syncope. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Service connection has been established for coronary artery disease, status-post stenting. The RO evaluated the Veteran's heart disability as initially 30 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7005, based on documented coronary artery disease and MET (metabolic equivalent) testing. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Under Diagnostic Code 7005, coronary artery disease with a workload of greater than 5 METs (metabolic equivalents) but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness or syncope, or; evidence of cardiac hypertrophy or dilatation on EKG, echocardiogram or X-ray, warrants a 30 percent rating. A 60 percent rating is warranted when there is 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, resulting in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted when there is chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters 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, 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 to rate the Veteran. 38 C.F.R. § 4.104. The Veteran was diagnosed with coronary artery disease in April 2002. He underwent heart catherization in May 2002, which demonstrated significant two vessel coronary artery disease. Intracoronary stenting of the circumflex coronary artery, the proximal left atrial dimension, and the diagonal coronary artery was performed. There was no evidence of left ventricular dysfunction, and the Veteran's ejection fraction was 55 percent to 60 percent. Records show that the Veteran had recurrent pain in February 2004 and underwent repeat cardiac catherization, which demonstrated continued occlusion of the distal left atrial dimension and collateral flow from the right coronary artery, with mild disease. He was continued on his medications, with the addition of beta-blockers and nitrate therapy. The Veteran reported occasionally having a brief "sharp and dull" discomfort localized to an area just above his left breast, and similar pain in his axillary area upon exertion. Private treatment records, dated in April 2005, showed complaints of fatigue and normal left ventricular systolic function with an ejection fraction of 55 percent to 60 percent. During a May 2006 VA examination, the Veteran reported having angina once or twice weekly, which was usually associated with exertion; he reported taking nitroglycerin. Examination of the cardiovascular system showed no neck vein distention or carotid bruits; the Veteran had a normal sinus rhythm without rubs, clicks, murmurs, or gallops. An echocardiogram in June 2006 revealed evidence of mild left ventricular hypertrophy, and trace mitral regurgitation. Ejection fraction was 65 percent. Records show that the Veteran underwent cardiac catherization and stenting of his right coronary artery in May 2007. Subtotal occlusion of the left anterior descending was again noted, with unsuccessful attempt of balloon angioplasty of that vessel. Records show that the Veteran was again hospitalized in May 2008 for chest pain, which was determined to be scar tissue in the heart and did not require an angioplasty. During a July 2009 VA examination, the Veteran reported exertional dyspnea when walking normally on level ground for about three-fourths of a mile, and that inclines and stairs caused significant dyspnea quickly. The Veteran reported diminished energy and increased fatigue. He denied cardiac palpitations, syncopal episodes, and dizziness. At that time the examiner estimated a METs level greater than 4. Examination revealed normal sinus rhythm without rubs, clicks, gallops, or murmurs. There was a mild left ventricular configuration and elongation of the aorta. There was no evidence of congestive heart failure. Following the Board's June 2011 remand, the Veteran underwent a VA examination in July 2011 for purposes of determining the severity of his heart disability. The examiner reviewed the claims file and noted the Veteran's medical history, including previous cardiac catherizations and stent procedures and medications. The Veteran reported no history of myocardial infarction, rheumatic fever, hypertensive heart disease, heart rhythm disturbance, valvular heart disease, congestive heart failure, other heart disease, dizziness, syncope, or fatigue. Current symptoms included hypertension, angina, and dyspnea on mild exertion. On examination, the Veteran's blood pressure reading was 124/82. His heart rate had a regular rate and rhythm; there was no evidence of abnormal breath sounds. Stress test results in January 2010 showed a METS level of 9. An echocardiogram revealed a normal heart size, and no evidence of cardiac hypertrophy or dilatation. The left ventricular ejection fraction was greater than 50 percent. Echocardiogram testing later that month showed the ejection fraction was 55 to 60 percent. Findings were consistent with ischemic heart disease. The examiner added that the Veteran's heart disability did not impact his ability to work. The examination was adequate as it was based on a review of the history, an examination and as sufficient information was provided to enable the Board to render an informed determination. Private treatment records again showed complaints of chest pain in January 2012. At the outset of this discussion, the Board notes that the Veteran's ischemic heart disease is rated as analogous to coronary artery disease; and that the diagnostic criteria for various diseases of the heart assign the same percentage for episodes of congestive heart failure, for METs, and for left ventricular dysfunction with an ejection fraction. In this regard, a compensable rating is permissible under only one of these diseases of the heart. Thus, the Board finds that awarding separate disability ratings for both ischemic heart disease and for coronary artery disease would clearly violate the anti-pyramiding provisions of 38 C.F.R. § 4.14 (2012). That notwithstanding, after a careful review of the medical evidence and lay statements, the Board finds that no more than the currently assigned 30 percent disability rating is warranted for the Veteran's heart disability. While there is evidence that the Veteran has undergone, on more than one occasion, a cardiac catheterization and placement of stents-most recently, in May 2007-the evidence does not reflect any episodes of congestive heart failure; and the Veteran has not reported experiencing any instances of congestive heart failure. Although one examiner estimated a maximal workload of greater than 4 METS, there was no indication in the examination report as to why laboratory determination of METs by exercise testing could not be done. See 38 C.F.R. § 4.104 (2012). Actual stress test results in January 2010 showed a METS level of 9. As such, the evidence does not show that the Veteran has workload of greater than 3 METs but not greater than 5 METs at any time covered by this claim. The Veteran has also reported being physically active, though experiencing dyspnea on exertion and increased fatigue. Even though the Veteran contends that his heart disability has worsened recently-as shown by private treatment records dated in January 2012, another VA examination is not warranted. In January 2012, the Veteran was seen complaining of chest pain that lasted for several days and had resolved. The Veteran reported that he had done "some lifting that [he] shouldn't have been doing" a couple of days before the episode. After a physical examination, the physician ordered an EKG, and it was determined thereafter that there was no change from the prior EKG. The physician reassured the Veteran that his chest pain was not likely cardiac. Although the Veteran did report chest pain in January 2012, he has reported a positive history of angina throughout the rating period. The Board finds that the examination report does not indicate there was a worsening of the service-connected disability as his episode of chest pain at that time was found not likely to be cardiac, and as an electrocardiogram in January 2012 was unchanged from a previous electrocardiogram. The January 2012 treatment records merely continue to show complaints of exertional dyspnea, described as mild and occurring when climbing an incline but no worsening of symptoms is shown such that another examination is warranted. Likewise, throughout the rating period, echocardiograms have revealed mild left ventricular hypertrophy. There is no evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent to warrant a higher initial rating. Here, the evidence of left ventricular hypertrophy supports no more than an initial 30 percent rating under Diagnostic Code 7005. As the criteria for the next higher, 60 percent rating are not met, it follows that the criteria for the maximum 100 evaluation also are not met. Thus, the weight of the evidence is against the grant of an initial disability rating in excess of 30 percent, based on documented coronary artery disease and METs (metabolic equivalents) testing. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2012). While the Veteran competently and credibly contends that he has had several stents placed in his heart and still has near-total occlusion of an artery, and that his heart medications have increased over the years, the objective findings consistently fail to show that his heart disability meets the criteria for a higher initial disability evaluation; and the Board concludes that those findings outweigh his lay assertions regarding severity. The medical findings are based on examination and testing to specifically determine whether there is congestive heart failure, and to determine the METs level and ejection fraction. Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected coronary artery disease, status-post stenting, is adequate in this case. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. His heart disorder, and the severity thereof, which is manifested by symptoms of angina and dyspnea and reduced exercise tolerance are contemplated by the schedular criteria. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, the Board finds that, throughout the rating period, the preponderance of the evidence is against an initial disability rating in excess of 30 percent for coronary artery disease, status-post stenting. ORDER An initial disability evaluation in excess of 30 percent for coronary artery disease, status-post stenting, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs