Citation Nr: 1331028	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO. 12-13 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for residuals of myocardial infarction (claimed as a heart condition)


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Michael J. Adams, Associate Counsel


INTRODUCTION

The Veteran served on active duty from October 1968 to October 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.

The Veteran's representative has asserted that the RO committed clear and unmistakable error in assigning January 28, 2011 as the effective date for the Veteran's service-connected ischemic heart disease.  The representative contends that because the Veteran filed his claim for service connection within one year of the change to 38 C.F.R. § 3.309 (to include ischemic heart disease under the list of presumptive diseases related to herbicide exposure) that an effective date of August 31, 2010 (the date of the regulation change) should be applied.  As this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ) the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

During the applicable period on appeal the Veteran's heart disease (including residuals of myocardial infarction) has not been manifested by a workload less than 10 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, or; chronic or episodes of acute congestive heart failure, or; left ventricular dysfunction with an ejection fraction less than 50 percent.


CONCLUSION OF LAW

Throughout the appeal period, the criteria for an initial rating in excess of 10 percent for residuals of myocardial infarction (claimed as heart condition) have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.104, Diagnostic Code (DC) 7006 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326(a).

Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

The Veteran is challenging the initial evaluation assigned following the grant of service connection for his disability.  In Dingess, the Court also held that in cases where service connection has been granted and an initial disability evaluation has been assigned, the service connection claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer necessary because the purpose that the notice is intended to serve has been fulfilled.  Id, at 490-91.  Therefore, regardless of whether the notice that the Veteran was provided with before service connection was granted was legally sufficient, the Board finds that VA's duty to notify in this case has been satisfied. 

Moreover, the Board finds that even if VA had an obligation to provide the Veteran with 38 U.S.C.A. § 5103(a) notice and failed to do so before first adjudicating his claim, that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the December 2010 VCAA letter as well as the rating decision and the statement of the case.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).
As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  In this case, the RO obtained the report associated with the VA examination, along with private treatment records that included a disability benefits questionnaire (DBQ) completed by the Veteran's private physician.  The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. 

The Veteran was provided with a VA examination in March 2011 (the report of which has been associated with the claims file).  The Board finds that this examination is thorough and adequate upon which to base a decision with regard to the Veteran's claim.  The VA examiner personally interviewed and examined the Veteran, including eliciting a medical history from the Veteran, and provided the information necessary to evaluate his disability under the applicable rating criteria.  Moreover, neither the Veteran nor his representative have objected to the adequacy of the examination.  The Veteran's representative did request another examination, asserting that during the appeals process the Veteran's symptoms may have potentially increased in severity.  However, this statement is not a declaration that the Veteran's symptoms have increased in severity, only that they might.  As such, a contemporaneous examination is not required.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002).

II. Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court held that in initial rating claims evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of separate rating for distinct periods of time is required (known as "staged ratings").  See Fenderson, 12 Vet. App. at 126.

In a June 2011 rating decision, the Veteran was granted service connection for ischemic heart disease secondary to herbicide exposure.  A disability rating of 10 percent was assigned, effective January 28, 2011.  The Veteran appealed contending that he should receive a higher disability rating.

Under DC 7006, which pertains to myocardial infarction, a 10 percent evaluation is assigned when there is evidence of a myocardial infarction resulting in a workload of greater than 7 METs (metabolic equivalents) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication is required.  A 30 percent evaluation is assigned when a workload of 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  A 60 percent evaluation is warranted when there is more than one episode of congestive heart failure in the past year, or a workload of 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A 100 percent evaluation is assigned when there is chronic congestive heart failure, or a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, DC 7006.

The Veteran has also been diagnosed with coronary artery disease (CAD).  CAD is rated under diagnostic code 7005.  The criteria for a rating under DC 7005 are identical to 7006 except that for 7006 (myocardial infarction) a 100 percent rating is warranted for the three months immediately following a myocardial infarction.  Since the Veteran's claim was filed more than three months after his heart attack, there is no difference for rating purposes between DC 7005 (coronary artery disease) and DC 7006 (myocardial infarction).  Therefore, the analysis under DC 7005 is the same as under DC7006.

One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.  When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, 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).

While there are numerous private treatment reports dating from before the claim was filed, the relevant medical evidence for the period on appeal consists of the March 2011 VA examination and a VA DBQ completed by the Veteran's private physician in May 2011.

The VA examination report from March 2011 reveals that the Veteran was on continuous medication in connection with his ischemic heart disease.  The examination also reflects that the Veteran experienced a myocardial infarction in September 2007.  Additionally the examiner reported that the Veteran did not have chronic congestive heart failure, and did not list any episodes of heart failure in the previous year or prior.  The examiner also reports that the Veteran denied experiencing any dyspnea, fatigue, angina, dizziness, or syncope with any level of physical activity.  The examination report reflects that there is no evidence of cardiac hypertrophy or dilatation, citing the Veteran's July 2009 EKG and October 2007 echocardiogram.  Left ventricular ejection fraction testing conducted in October 2007 revealed a 60 percent rate.  Finally, the examination report indicates that the Veteran's disability does not impact his ability to work.
A VA DBQ for ischemic heart disease was also completed by the Veteran's private physician in May 2011.  The DBQ reflects that the Veteran was diagnosed with ischemic heart disease in September 2007 and experienced a myocardial infarction at that time.  The DBQ further reflects that the Veteran is on continuous medication but does not have chronic congestive heart failure nor does he experience acute episodes.  The DBQ also references a diagnostic exercise test conducted in April 2011 and reports a MET level of 11.2.  The examining physician indicated that MET testing based on the Veteran's responses was not applicable even though a box reporting MET levels between 3 and 5 was checked.  The examiner continued, reporting that there was no evidence of cardiac hypertrophy or dilatation and that the Veteran had a left ventricular ejection fraction of 53 percent based on testing in April 2011.

The evidence in this case weighs against a finding that the Veteran's ischemic heart disease has manifested in excess of a 10 percent disability rating.  As described, a higher rating is warranted where the evidence demonstrates that a workload of less than 10 METS results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, or the Veteran experiences chronic congestive heart failure or 3 or more acute failures in one year, or left ventricular dysfunction with an ejection fraction less than 50 percent.  Here, the evidence reflects that the Veteran reached a MET level of 11.2 in April 2011 and reported no symptoms of dizziness, fatigue, angina, dyspnea or syncope during any amount of activity at his March 2011 VA examination.  Both the VA examiner and private physician reported that there was no evidence of hypertrophy or dilatation and test results from April 2011 revealed that the Veteran's left ventricular ejection fraction was 53 percent.  Finally, both the VA examiner and the Veteran's private physician noted that the Veteran did not have chronic congestive heart failure and did not report any acute episodes of heart failure.  While the box marked "3 to 5 METs" was checked for question 4B on the May 2011 VA DBQ, the Board finds this to be in error or at the least not persuasive.  As discussed, the examining physician had already conducted exercise MET testing and reported a score of 11.2.  The instructions on the DBQ indicate that MET testing should be based on the Veteran's statements only if exercise MET testing was not completed.  Furthermore, the examiner wrote "NA" for question 4B, indicating that MET testing based on the Veteran's responses was not applicable.  Moreover, the results of the exercise MET test accurately reflect the VA examiners findings from March 2011, just two months prior.  Accordingly, it is unlikely that the private examiner intended to check the "3 to 5 METs" box and if he did, this evidence is contradicted and outweighed by the remaining medical evidence and is therefore not persuasive.

As described, the medical evidence in this case does not show that a schedular rating in excess of 10 percent is warranted for the Veteran's ischemic heart disease at any time during the course of his appeal.  Therefore there is no basis for a staged rating.

The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where the rating schedule is found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made.  38 C.F.R. § 3.321(b)(1).  The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service.  Thun v. Peake, 22 Vet. App. 111 (2008).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  This means that 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.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required.  If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization").  See id. 

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.

The Board further observes that, even if the available schedular evaluations for the ischemic heart disease disability are inadequate (which they are not), the Veteran does not exhibit other related factors such as those provided by the regulations as "governing norms."  Specifically, the Veteran has not reported that he is unable to work as a result of his heart disability.  Moreover, the March 2011 VA examination report reflects that the Veteran's heart disability has no impact on his ability to work.  The record is negative for objective evidence that the Veteran's heart disability has resulted in marked interference with employment or frequent periods of hospitalization.  See Bagwell v. Brown, 9 Vet. App. 337 (1996).  Therefore, the Board finds that the evidence does not demonstrate an exceptional or unusual clinical picture beyond that contemplated by the rating criteria.

The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised.  Here, there is no evidence that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities.  He has not alleged that he is unemployable on account of his service connected disabilities.  As described, the Veteran March 2011 VA examination report reflects that the Veteran's heart disability does not impact his ability to work. The Veteran has not asserted that his service-connected disabilities prevented him from securing or following a substantially gainful occupation.  Thus, the Board finds that no claim for TDIU has been reasonably raised by the record.

ORDER

Entitlement to a disability rating in excess of 10 percent for ischemic heart disease is denied.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs