Citation Nr: 1328564 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 06-10 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating in excess of 10 percent for atherosclerotic heart disease, status post circumflex stent angioplasty, for the period from October 22, 2004 to June 29, 2009. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to August 1970. This appeal is before the Board of Veterans' Appeals (Board) from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a June 2005 rating decision, the RO granted service connection for atherosclerotic heart disease, status post circumflex stent angioplasty, evaluated as 30 percent disabling from August 15, 2002, and as 10 percent disabling from October 22, 2004. The Veteran appealed the issue of entitlement to a higher initial rating. In April 2009, the Board remanded the claim for additional development. In May 2011, the RO granted a 30 percent rating, effective June 30, 2009. As this award did not constitute a full grant of the benefits sought, the increased initial rating issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In May 2012, the Board granted a 60 percent rating, effective June 30, 2009. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In January 2012, while the case was pending at the Court, the VA's Office of General Counsel and the Veteran's representative filed a Joint Motion for Partial Remand (Joint Motion) requesting that the Court vacate that part of the Board's May 2012 decision that denied entitlement to an initial rating in excess of 10 percent for the period from October 22, 2004, to June 29, 2009. In January 2013, the Court granted the Joint Motion and issued an Order vacating that part of the May 2012 Board decision that denied entitlement to an initial rating in excess of 10 percent for the period from October 22, 2004, to June 29, 2009. In May 2013, the Board remanded the initial rating issue for additional development. FINDING OF FACT For the period from October 22, 2004, to June 29, 2009, atherosclerotic heart disease, status post circumflex stent angioplasty was shown to have been manifested by complaints of dyspnea on exertion, an essentially normal workload capacity and the required use of continuous medication. CONCLUSION OF LAW The criteria for the assignment of an initial evaluation in excess of 10 percent for atherosclerotic heart disease, status post circumflex stent angioplasty for the period from October 22, 2004, to June 29, 2009 are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1-4.3, 4.6-4.7, 4.104 including Diagnostic Code 7005 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's 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, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) ; Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (including as amended effective May 30, 2008, 73 Fed. Reg. 23353 (Apr. 30, 2008)). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the initial rating claim decided herein, as the June 2005 rating decision granted service connection for atherosclerotic heart disease, status post circumflex stent angioplasty, that claim is now substantiated. VA's General Counsel has clarified that no additional VCAA notice is required in this circumstance concerning a "downstream" issue, such as the rating or effective date assigned for a service-connected disability and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003. The filing of a notice of disagreement as to the disability ratings assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(3). Instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability-rating and/or earlier-effective-date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue a Statement of the Case (SOC) if the disagreement concerning the downstream issue is not resolved. And since the RO issued the appropriate SOC in May 2006 addressing the downstream increased rating claim, which included citation to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning a higher rating, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Regarding VA's duty to assist, all appropriate development to obtain the Veteran's pertinent medical records, to include service treatment records and pertinent, available post-service treatment records, has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. Most recently, as directed by the May 2013 Board remand, VA obtained copies of the Veteran's February 2006 and April 2008 VA stress tests. Accordingly, the Board finds that there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In addition, the Veteran has been afforded the appropriate VA examinations. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. II. Increased Rating Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Atherosclerotic heart disease is rated under Diagnostic Code 7005, which provides a 10 percent rating when a workload of greater than 7 metabolic equivalents (METs), but not greater than 10 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication is required. A 30 percent rating requires a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating requires 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, which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. A 100 percent rating requires documented 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. 38 C.F.R. § 4.104, Diagnostic Code 7005. One MET is defined as 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 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all of the evidence in the Veteran's claims files, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. III. Factual Background The period for consideration in this appeal is from October 22, 2004 to June 29, 2009. VA treatment records note that the Veteran was asymptomatic with regard to his heart in January 2005. In April 2005, he complained of fatigue, though not shortness of breath. He also denied orthopnea or shortness of breath after walking or after participating in usual daily activities. He additionally had no chest pain or discomfort, epigastric pain, or substernal chest pain; no jaw or left arm pain; no cold sweating or dizziness; no leg edema or pain; no fatigue or dyspnea at exertion; no nocturnal dyspnea or paroxysmal nocturnal dyspnea; and no palpitations. It was noted that, despite being essentially asymptomatic, the Veteran persisted with fatigue. He was seen by cardiology in May 2005 due to dyspnea. He denied having chest pain. It was noted that radiology completed in April 2005 showed no evidence of cardiopulmonary abnormalities. Chest X-ray studies showed normal bony thorax, cardiac silhouette, and minimal ecstatic changes of the thoracic aorta. An EKG showed marked sinus bradycardia. The Veteran underwent a VA heart examination in May 2005. He reported that he did well for a few months following his angioplasty and stent placement in September 2002, but began to experience progressively worsening shortness of breath thereafter. The Veteran reported taking atenolol, lisinopril and aspirin. The examiner noted that an October 2004 nuclear study completed at the VA showed normal biventricular function and no wall motion abnormality. LVEF (left ventricle ejection fraction) was 65 percent. Current examination of the heart showed normal sinus rhythm, and no murmurs or gallops. There was no evidence of congestive heart failure. Exercise testing was not performed. Gated cardiac blood pool study (MUGA) was performed, showing the cardiac chambers to be of normal size with "suggested" hypertrophy of the side myocardium. The contractile motion of both ventricles was adequate with LVEF value of 74 percent. (The examiner noted that greater than 50 percent was considered normal.) The stroke volume ratio was 1.0, which was on the normal range. No wall motion abnormalities were identified. The diagnosis was hypertensive atherosclerotic heart disease, status post circumflex stent angioplasty, congestive heart failure compensated. A September 2005 VA treatment record notes the Veteran's previous complaints of exertional dyspnea that had resolved; the Veteran was asymptomatic at the time. A September 2005 VA cardiology clinic note documents the Veteran's complaints of shortness of breath, which the Veteran indicated had improved to only occasional complaints. He was free of pain. A MUGA test that showed adequate biventricular function and LVEF of greater than 70 percent. The Veteran did not present for echo or stress tests in light of his improved symptoms, but a follow-up examination in four months was recommended. Atenolol was continued. In November 2005, the Veteran suffered direct trauma to the right chest wall. It was found that he had chest wall pain of muscular origin. X-ray studies revealed no abnormalities. A January 2006 VA cardiology clinic note notes the Veteran's complaints of moderate dyspnea on exertion. He denied chest pain. However, by February 2006, there were no longer complaints of dyspnea on exertion, and the Veteran was completely asymptomatic. A February 2006 exercise stress test revealed LVEF of 72 percent. The Veteran was able to obtain a maximum heart rate equivalent to 99 percent of his age expectation. He ceased the stress test due to exhaustion without chest pain or evidence of echocardiogram ischemic changes. The examiner noted that it was a normal study. A July 2006 VA cardiology clinic note shows the Veteran's complaints of moderate dyspnea on exertion. He denied chest pain. A March 2008 VA cardiology note showed that the Veteran denied chest pain, but reported having shortness of breath lasting a few seconds. An April 2008 VA stress test showed adequate heart rate and blunted blood pressure response to adenosine, with no complaints of headache or chest pain during the procedure. Baseline EKG had sinus bradycardia, but serial electrocardiographic tracings during the stress test did not show evidence of arrhythmia or ischemia. LVEF was 66 percent. Sum differential score was 4, which was mildly abnormal (with normal being less than 4). Myocardial perfusion scan provided evidence suggesting the presence of probable mild adenosine-induced reversible perfusion changes on the anterior wall of the left ventricle, as may be seen with myocardial ischemia. Serial EKGs were negative for ischemic changes. Another April 2008 VA treatment record notes no complaints of chest pain, shortness of breath on exertion or when supine, palpitations, being awoken suddenly by shortness of breath, leg swelling, or pain on calf after walking. However, sinus bradycardia was present. A May 2008 VA cardiology follow-up record shows that the Veteran reported that his symptom of shortness of breath had improved without limitation to perform daily activities. He also denied having chest pains. A September 2008 VA cardiology note shows the Veteran's complaint of dyspnea on exertion upon taking one flight of stairs. He denied chest pain and palpitations. He indicated that he was independent with activities of daily living. His ischemic heart disease was noted to be well- controlled. Another VA treatment record dated later the same month indicates that the Veteran's ischemic heart disease was asymptomatic. An October 2008 VA echocardiogram report shows that the left ventricle was normal in size. There was no thrombus, but there was borderline concentric left ventricular hypertrophy. LVEF was normal, and ejection fraction was greater than 55 percent. The right ventricle also was normal in size, with normal right ventricular wall thickness. The right ventricular systolic function also was normal. Also, the left and right atrial sizes were normal. The interatrial septum was intact with no evidence for an atrial septal defect. The aortic valve had adequate motion and pliability and was trileaflet. There was no aortic valvular vegetation and no hemodynamically significant valvular aortic stenosis. No aortic regurgitation was present. The pulmonic valve also had adequate motion and pliability, with no pulmonic valvular stenosis. There was mild pulmonic valvular regurgitation. Findings also showed the aortic root to be normal in size with aortic root sclerosis/calcification. January 2009 and June 18, 2009 VA cardiology follow-up reports note no complaints of chest pain, palpitations, syncope, but the Veteran did report occasional shortness of breath and dyspnea on exertion upon taking one flight of stairs. EKG studies revealed sinus bradycardia. In January 2009 the examiner noted that the Veteran's heart disease was stable and he should continue his medication. In June 2009 the examiner noted that the Veteran's private physician had discontinued lisinopril due to a cough side effect; it was noted that the Veteran's uncontrolled blood pressure could cause dyspnea. IV. Analysis Based on a review of the evidence above, the Board finds that the overall disability picture for the period from October 22, 2004, to June 29, 2009, did not meet the criteria for an initial rating higher than 10 percent for atherosclerotic heart disease, status post circumflex stent angioplasty. The record does not include findings necessary to establish a higher initial evaluation of 30 percent or higher as there is no evidence of record showing that, during this period, the Veteran had a workload of less than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope or evidence of cardiac dilatation on electrocardiogram, echocardiogram, or X-ray study. In this regard, the Board acknowledges the findings of "suggested" hypertrophy in the May 2005 and "borderline" hypertrophy noted in October 2008; however, no conclusive evidence of such is shown. Indeed, the May 2005 VA examination that incorporated the May 2005 MUGA study suggesting hypertrophy did not include actual diagnosis of hypertrophy. Rather, the diagnosis was: hypertensive atherosclerotic heart disease, status post circumflex stent angioplasty, congestive heart failure compensated. And in October 2008 echocardiogram finding of "borderline" hypertrophy is contradicted by the unambiguous contemporaneous findings of the same report showing that the left ventricle and right ventricle were of normal size, and there was norm right ventricular wall thickness. Moreover, with regard to the April 2008 stress test noted in the Board's May 2012 decision and the Joint Motion, this report has been obtained and does not show that the Veteran was found to have a workload of 4 METs, as indicated by the June 2009 VA examiner. On this point, the Board concludes that the VA examiner was in error. There was a sum differential score of 4, but there is no indication that this is the same as a METs testing score. In fact, none of the evidence of record for the applicable time period shows that the Veteran had a workload of less than 7 METs, so as to warrant an increased rating. As noted above, the medical evidence shows for the period from October 22, 2004, to June 29, 2009, the Veteran's atherosclerotic heart disease, status post circumflex stent angioplasty, was manifested by symptoms such as fatigue, shortness of breath that improved over time, dyspnea on exertion, normal biventricular function, no X-ray evidence of cardiopulmonary abnormalities, and marked sinus bradycardia on EKG. The Veteran's heart condition was generally noted to be well-controlled and/or asymptomatic. Overall, the great weight of the evidence shows that there was no definitive cardiac hypertrophy or METs score of less that 7 during this period time. Therefore, a rating in excess of 10 percent for this period is not warranted for the period from October 22, 2004 to June 29, 2009. The Board has also considered whether referral for an extra- schedular evaluation is warranted for the Veteran's service- connected heart disability. The question of an extra- schedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Under the provisions of 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extra-schedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. If the evidence raises the question of entitlement to an extra-schedular rating, the threshold factor for extra-schedular 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology for the period at issue, and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The Board notes that, due to his heart disease, the Veteran experiences dyspnea on exertion which limited his physical activity. However, the Rating Schedule is based on the concept of occupational impairment caused by the specific rating criteria listed for each disability percentage. Therefore, this impairment is inherently contemplated by the Rating Schedule. The symptoms shown on examination did not place the Veteran in a higher percentage category for the period at issue. ORDER An initial rating in excess of 10 percent for atherosclerotic heart disease, status post circumflex stent angioplasty, for the period from October 22, 2004 to June 29, 2009, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs