Citation Nr: 1326790 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-04 247 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased initial rating for coronary artery disease (CAD) status post myocardial infarction (MI), rated as 30 percent disabling prior to April 2, 2008, 10 percent disabling for the period between April 2, 2008 and April 20, 2011, 30 percent disabling for the period between April 20, 2011 and July 5, 2011, 100 percent disabling for the period between July 5, 2011 and November 1, 2011, and 30 percent disabling thereafter. 2. Entitlement to an increased rating for hypertension, rated as 10 percent disabling for the period prior to April 20, 2011 and 20 percent disabling thereafter. 3. Entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to February 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. On his February 2009 substantive appeal, the Veteran requested to appear at a hearing before a hearing officer at the local RO. In September 2010, he indicated that he wished to testify before the BVA at the RO. A videoconference hearing was scheduled for August 2011, but on the day of the hearing, the Veteran's representative cancelled the hearing request and indicated that the Veteran wished to withdraw his appeal. As proper documentation was never received from the Veteran confirming withdrawal of his claims, the appeal was not closed and is properly before the Board. However, the Veteran has never requested another hearing and in December 2012 he stated that he wanted his case to proceed to the Board without any delay. The Board therefore finds that the Veteran has withdrawn his request in accordance with 38 C.F.R. § 20.704(e) (2012) and will proceed with a decision in this case. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the claims period, the Veteran's CAD has manifested symptoms of occasional chest pain, shortness of breath, and fatigue, as well as metabolic equivalents (METs) between 5 and 7 and a left ventricular ejection fraction greater than 50 percent without congestive heart failure. 2. The Veteran's cardiac bypass scars do not involve the head, face, or neck, are not the result of a burn injury, and are nonpainful, stable, and do not result in limitation of motion. 3. During the period prior to April 20, 2011, the Veteran's hypertension required continuous medication with a history of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. 4. During the period beginning April 20, 2011, the Veteran's hypertension most nearly approximates diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The schedular criteria for a 30 percent rating, but not higher, for CAD during the entire claims period have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.104, 4.118, Diagnostic Codes 7005, 7800-7805 (2012). 2. The schedular criteria for a rating in excess of 10 percent for hypertension during the period prior to April 20, 2011 have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. 3. The schedular criteria for a rating in excess of 20 percent for hypertension during the period beginning April 20, 2011 have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Claims Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco, supra. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). CAD Service connection for CAD status post MI was awarded in the July 2008 rating decision on appeal. An initial 30 percent evaluation was assigned for the period prior to April 2, 2008 with a 10 percent evaluation thereafter. In a June 2011 rating decision, an increased 30 percent evaluation was assigned effective April 20, 2011. Additional increased ratings were granted in a January 2012 rating decision, with a temporary total rating based on surgical treatment necessitating convalescence awarded from July 5, 2011 to November 1, 2011 with a 30 percent evaluation thereafter. The award of a temporary total schedular rating is the maximum rating possible, and the Board will therefore not address whether an increased rating is possible for the period between July and November 2011. Thus, for the purposes of this decision, the Veteran's CAD is rated as 30 percent disabling prior to April 2, 2008, 10 percent disabling for the period between April 2, 2008 and April 20, 2011, and 30 percent disabling thereafter. The Veteran's CAD status post MI is rated under Diagnostic Code 7005 pertaining to arteriosclerotic heart disease. 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. Diagnostic Code 7005 provides a 10 percent rating for CAD resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. CAD 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. CAD 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 of 30 to 50 percent, is rated 60 percent disabling. CAD resulting in 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, is rated 100 percent disabling. 38 C.F.R. § 4.104. After review of the evidence, the Board finds that a 30 percent rating is warranted for the Veteran's heart disease throughout the entire claims period. The service-connected CAD manifests METs that are contemplated by a 30 percent rating. VA contract examiners who examined the Veteran and reviewed the claims file in April 2011 and February 2012 specifically estimated the Veteran's METs as between 5 and 7. Additionally, the Veteran's reports of occasional chest pain, shortness of breath, and fatigue are also associated with a 30 percent evaluation. With respect to the period between April 2, 2008 and April 20, 2008, there is no specific medical evidence pertaining to this period. However, there is also no indication that the Veteran's disability improved to the level contemplated by the current 10 percent rating. The Board will resolve all doubt in favor of the Veteran and find that his service-connected CAD most nearly approximated a 30 percent rating during the less than three week period in April 2008, the same rating that is assigned for the periods immediately before and after. The evidence does not establish that a rating in excess of 30 percent is warranted at any time during the claims period. As noted above, the Veteran's METs levels are clearly contemplated by a 30 percent evaluation, and there are no findings of congestive heart failure. In fact, the April 2011 and February 2012 VA contract examiners, as well as the Veteran's primary care physician at the VA in January 2012, specifically observed that the Veteran did not experience heart failure. The Veteran's left ventricular dysfunction has also most nearly approximated the criteria associated with a 30 percent evaluation. An April 2007 echocardiogram, performed during the Veteran's hospitalization for a gastrointestinal bleed, demonstrated an ejection fraction of 50 to 55 percent. This finding was interpreted by the Veteran's private cardiologist as normal during an October 2007 evaluation. Echocardiograms conducted during the April 2011 and February 2012 VA contract examinations also showed ejection fractions of 70 and 64 percent, respectively. These findings are contemplated by the currently assigned 30 percent rating. Although a lower ejection fraction of 35 percent was manifested during a February 2008 stress test, the Veteran's cardiologist found that this an underestimation of the Veteran's actual left ventricular dysfunction due to technical limitations secondary to the Veteran's large body habitus. Therefore, the ejection fraction demonstrated by the February 2008 stress test is not truly indicative of the Veterean's left ventricular function. It is clear that the Veteran's CAD is appropriately rated as 30 percent disabling, but not higher, throughout the entire claims period. The Veteran's service-connected CAD also includes scarring associated with a July 2011 cardiac bypass surgery. As the scars could be productive of separate and distinct symptoms, the Board will consider whether a separate rating is warranted for the scarring. See 4.14, Esteban at 261-62. Scars are rated under 38 C.F.R. § 4.118, for disorders of the skin under Diagnostic Codes 7801-7805. Upon VA examination in February 2012, four scars were identified as residuals of the Veteran's bypass surgery; one scar on the right leg measured 4 cm in length, while three scars on the chest and abdomen measured 19 cm, 2 cm, and 2 cm. The scars clearly did not involve the head, face, or neck, and are clearly not due to burns. Additionally, the February 2012 VA examiner found that the scars were not painful or unstable and did not result in any limitation of motion or other loss of function. A separate compensable rating is therefore not possible under Diagnostic Codes 7800-05 (2012). The Board has considered whether there is any other schedular basis for granting a higher rating other than that discussed above, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for any additional increased ratings. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Hypertension Service connection for hypertension was granted in a February 1974 rating decision with an initial noncompensable evaluation effective February 22, 1973. In a January 2009 rating decision, an increased 10 percent evaluation was assigned effective September 27, 2007. A 20 percent evaluation was granted in a June 2011 rating decision effective April 20, 2011. Thus, the Veteran's service-connected hypertension is currently rated as 10 percent disabling prior to April 20, 2011 and 20 percent disabling thereafter. The Veteran contends that increased ratings are warranted throughout the claims period as his hypertension is more severe than contemplated by the current disability evaluations. The Veteran's disability is rated under Diagnostic Code 7101 pertaining to hypertensive vascular disease. Under this diagnostic code, a 10 percent rating is applicable if diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or there is a history of diastolic pressure of predominantly 100 or more and continuous medication is required to control blood pressure. A 20 percent evaluation is warranted if diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more. A 40 percent evaluation is appropriate with diastolic pressure predominantly 120 or more and a maximum 60 percent evaluation is assigned with diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. For the period prior to April 20, 2011, the Board finds that the Veteran's hypertension most nearly approximates the criteria associated with the currently assigned 10 percent evaluation. Records associated with the Veteran's private treatment and hospitalization for heart disease during this period indicate blood pressure readings were somewhat elevated, but do not overall most nearly approximate diastolic pressure 110 or more or systolic pressure 200 or more. Upon VA contract examination in April 2008, the Veteran's blood pressure was measured as 130/82 and the examiner found that the Veteran had no current symptoms of hypertension. The record does contain some blood pressure findings that are associated with a rating in excess of 10 percent during the period prior to April 20, 2011. In February 2008, during a stress test ordered by his private cardiologist, the Veteran manifested a peak blood pressure of 200/120. Similarly, the Veteran demonstrated some instances of increased blood pressure during a January 2009 hospitalization for right knee replacement surgery. A blood pressure log covering the Veteran's week long admission to the hospital shows a peak diastolic pressure of 176 on January 23, 2009. Although the two blood pressure readings in February 2008 and January 2009 are contemplated by increased ratings under Diagnostic Code 7101, the Board cannot concluded that these isolated findings establish that the Veteran's hypertension predominantly met the criteria for a higher rating during the period prior to April 20, 2011. The February 2008 and January 2009 readings represent two instances of high blood pressure during a period encompassing 5 years. The Board also notes that the increased blood pressure measurements were made during periods of high stress; i.e. during a cardiac stress test and while the Veteran was hospitalized for surgery. Furthermore, the Veteran's blood pressure returned to normal soon after the stress test. During an office visit with his cardiologist a few weeks after the stress test in February 2008, the Veteran's blood pressure was measured as 130/98. Therefore, the Board cannot conclude that the isolated instances of high blood pressure in February 2008 and January 2009 establish that the Veteran's diastolic and systolic pressures most nearly approximated the criteria associated with a rating in excess of 10 percent during the period prior to April 20, 2011. During the period beginning April 20, 2011, the Veteran's hypertension is currently rated as 20 percent disabling. The Board also finds that an increased disability evaluation is not warranted during this period as the Veteran's blood pressure clearly does not most nearly approximate diastolic pressure predominantly 120 or more. Upon VA examination in April 2011, the Veteran's blood pressure was elevated to 190/118. This finding is contemplated by the current 20 percent evaluation and represents the highest blood pressure reading during the applicable period. Records of VA and private treatment during the period beginning April 20, 2011 do not document any other instances of blood pressure readings approaching the severity noted in April 2011. In fact, during the most recent VA contract examination in January 2012, the Veteran's blood pressure was measured as 130/84. It is therefore clear that a rating in excess of 20 percent is not appropriate for service-connected hypertension during the period beginning April 20, 2011. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Other Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disabilities. The Veteran's CAD is manifested by symptoms such as occasional chest pain, shortness of breath, fatigue, and reduced left ventricular dysfunction. His hypertension manifests elevated blood pressure. These symptoms are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The Veteran has initiated an appeal regarding the initial disability rating assigned following an award of service connection for CAD. The claim for service connection for the disability is now substantiated and the filing of a notice of disagreement (NOD) as to the July 2008 rating decision does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See 38 C.F.R. § 3.159(b)(3) (2012). Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. Under 38 U.S.C.A. § 7105(d), upon receipt of a NOD in response to a decision on a claim, the agency of original jurisdiction (AOJ) must take development or review action it deems proper under applicable regulations and issue a SOC if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the NOD. However, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. 38 C.F.R. § 3.159(b)(3). As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The January 2009 statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant diagnostic codes for rating the disability at issue, and included a description of the rating formulas for all possible schedular ratings under these diagnostic codes. The appellant was thus informed of what was needed not only to achieve the next-higher schedular rating, but also to obtain all schedular ratings above the initial evaluations that the RO assigned. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve a higher rating for the service-connected CAD. With respect to the increased rating claim for hypertension, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in January 2008 and February 2011 letters. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in January 2008 and February 2011 letters. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records. Additionally, the Veteran was provided proper VA examinations (most recently in January 2012) in response to his claims for increased ratings. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a 30 percent rating, but not higher, for CAD status post MI throughout the claims period is granted. Entitlement to a rating in excess of 10 percent for hypertension during the period prior to April 20, 2011 is denied. Entitlement to a rating in excess of 20 percent for hypertension during the period beginning April 20, 2011 is denied. REMAND Entitlement to TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). In this case, the Veteran has raised the issue of unemployability. In March 2012, he filed a formal claim for TDIU, though the claim was later withdrawn in a September 2012 statement. In May 2013, records from the Social Security Administration (SSA) were received by VA and demonstrated that the Veteran was awarded SSA compensation in October 2012 due, in part, to service-connected hypertension and heart disease. The Board therefore finds that a claim for TDIU has been raised by the record and is part of the claims for increased ratings currently before the Board. The RO has not explicitly adjudicated the claim for entitlement to TDIU. The Veteran would therefore be prejudiced if the Board were to decide this claim without prior adjudication by the RO. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). On remand, the RO should send the Veteran a letter that complies with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012), regarding his claim for entitlement to a TDIU. The duty to assist also requires that VA obtain an examination which includes an opinion on what effect the Veteran's service-connected disabilities have on his ability to work. 38 U.S.C. § 5107(a); Friscia v. Brown, 7 Vet. App. 294 (1994). The claim should then be adjudicated. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran appropriate notice regarding the claim for TDIU. Also request that he submit a properly completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 2. Schedule the Veteran for a VA examination to determine the effect of the Veteran's service-connected CAD and hypertension on his ability to work. The claims file must be provided to the examiner and reviewed in conjunction with the examination. After examining the Veteran and reviewing the claims file, the examiner should provide an opinion as to whether the Veteran's service-connected CAD and hypertension render him unable to secure or follow a substantially gainful occupation. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Adjudicate the issue of entitlement to TDIU. If the Veteran does not meet the schedular criteria for a grant of TDIU, determine whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 4.16(b). 4. If the benefits sought on appeal are not fully granted, issue a SSOC before returning the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs