Citation Nr: 1332701 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 07-21 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability evaluation in excess of 10 percent for coronary artery disease (CAD) from May 27, 2009, through May 2, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to July 1974 and July 1975 to April 1990. This matter comes to the Board of Veterans' Appeals (Board) from a May 2009 rating of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In January 2011, this matter was last before the Board, at which time it was remanded for further development. That development has been completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In an August 2012 rating decision, the RO increased the evaluation of the Veteran's CAD to 100 percent disabling, effective May 3, 2011. As the maximum benefit has been granted, this time period is no longer involved in the present appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. For the period from May 27, 2009, through May 2, 2011, the Veteran's CAD was manifested by angina, fatigue, METS between 7 and 8, and left ventricular ejection fraction of 60 percent. 2. For the period from May 27, 2009, through May 2, 2011, the Veteran's CAD did not manifest by acute congestive heart failure; CAD was not productive of a workload greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or a left ventricular dysfunction with an ejection fraction of 30 to 50 percent; and there is evidence of cardiac hypertrophy. CONCLUSION OF LAW For the period from May 27, 2009, through May 2, 2011, the criteria for an evaluation of 30 percent, but no greater, for CAD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.100, 4.104, Diagnostic Code 7005-7017 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has not alleged any prejudice; thus, that burden has not been met. Nevertheless, the Board notes that VA has fully complied with the notice provisions of 38 U.S.C.A. § 5103(a). In letters dated in March 2006, the Veteran was advised of how to substantiate his claim for service connection, his and VA's respective duties in developing the claim, and as to the disability rating and effective date elements of his claim. VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the severity of his CAD. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. As the examination reports ultimately provide sufficient information such that the Board can render an informed determination, they are adequate. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. Where entitlement to compensation has already 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). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, staged ratings are in effect. The only remaining stage on appeal is from May 27, 2009, thorough May 2, 2011, during which time the Veteran's CAD has been evaluated as 10 percent disabling under Diagnostic Code 7005-7017, coronary artery disease and coronary bypass surgery. 38 C.F.R. § 4.104. Under Diagnostic Codes 7005, 7006 and 7017, a 10 percent rating is warranted for a workload of greater than 7 METs (metabolic equivalents) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating contemplates 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 contemplates 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 less than 30 percent to 50 percent. Finally, a 100 percent rating contemplates documented coronary artery disease (Diagnostic Code 7005), myocardial infarction (during and for three months thereafter, documented by laboratory tests) (Diagnostic Code 7006), coronary bypass surgery (for three months following hospital admission following surgery) (Diagnostic Code 7017, as well as chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. See 38 C.F.R. § 4.104, Diagnostic Codes 7005, 7006, 7017. Note: (1) of this section indicates that cor pulmonale, which is a form of secondary heart disease, is to be evaluated as part of the pulmonary condition that causes it. Note: (2) specifies that 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. Id. In addition to the preceding rating criteria, VA revised that portion of the Rating Schedule for evaluation of specified cardiovascular disorders, to consist of those rated under Diagnostic Codes 7000 through 7007, 7011, and 7015 through 7020, effective from October 6, 2006. See 71 Fed. Reg. 52,459-60 (Sept. 7, 2006); codified at 38 C.F.R. § 4.100. The revised regulation contains the following new provisions: (1) In all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained. (2) Even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis. (3) If left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability. Id. Here, the revised regulation regarding evaluation of the relevant cardiovascular disorders may be applied as of the October 6, 2006, effective date. And though the Veteran has not yet received notice of these provisions, they could not realistically result in any higher rating than that awarded for the relevant time frame; hence, the absence of such notice was merely harmless error. See Bernard v. Brown, 4 Vet. App. 384 (1993), 4 Vet. App. at 384 (if the Board addresses an issue not first considered by the RO, the Board must discuss whether this is prejudicial to the veteran). Regarding the most recent revision, the Board notes that the changes have no substantive affect on the claim for increase. The amended criteria have no retroactive effects. Indeed, the changes were merely meant to clarify the use of the existing rating criteria. 67 Fed. Reg. 54394 (Aug. 22, 2002). Given that the amendments were meant to clarify practices that were meant to apply to the existing criteria, the Board has applied the clarifications to the evaluation of the Veteran's disability during the relevant period. In claims for VA benefits, VA 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts As noted above, the relevant period in the present appeal involves May 27, 2009, through May 2, 2011. In its January 2011 decision, the Board addressed the evaluation of the disability prior to May 27, 2009, and in an August 2012 rating decision, the RO effectuated a grant of a 100 percent schedular evaluation, obviating any need to evaluate the disability from May 3, 2011 on. In April 2009, the Veteran was afforded a VA examination. At this time, it was noted that he had recently undergone a right total hip replacement. He then complained of fatigue and lassitude. Examination noted that the Veteran had CAD, initially diagnosed in 2006. He denied any history of presyncope or syncope. There was no history of acute myocardial infarction, congestive heart failure, endocarditis, pericarditis, valvular heart disease, cardiomyopathy, rheumatic heart disease or syphilitic heart disease. There was also no history of cardiac transplant. There was history of coronary artery bypass graft. The examination report notes that the Veteran had 2 stents placed in May 2006 and another in July 2006, as well as cardiac catheterization and emergency bypass surgery in July 2007. Also noted was a history of worsening chest pain in March 2008 and at which time another cardiac catheterization was performed. The Veteran then complained of mild chest pains, which were in the substernal area and that lasted for 2 hours brought on by activity and relieved by rest. These episodes occurred about once every 2 to 3 weeks. At the time of the examination, he was ambulating with the assistance of a rolling walker in his home and about 1000 feet per day. He arrived for his examination in a wheelchair. The examiner estimated that his metabolic equivalents (METs) were "light, 3-5." The examiner concluded that due to his recent hip replacement that he was not a candidate for exercise testing. Physical examination and testing showed that wall motion was normal. Estimated left ventricular ejection fraction was 60 percent. Wall thickness was normal. Following the April 2009 VA examination, the RO apparently requested clarification of the examination report in regard to the Veteran's inability to undergo exercise (stress) testing. Along these lines, there appears within the claims file a May 27, 2009, email from a VA Physician's Assistant, Certified (PA-C). The PA-C noted that they had reviewed the record in question and that the Veteran was unable to walk on a treadmill at the time of the VA examination due to his recent hip replacement. The PA-C also noted that the Veteran's knees and low back also impeded him in this regard. They explained that the ejection fraction was the better measure of his cardiac status and that "you would be safe in citing" the Veteran's joint problems as a "reason to discount the METs and go with the [ejection fraction]." Based upon the ejection fraction, the RO assigned the condition a 10 percent evaluation. Of record is an October 2, 2009, echocardiogram (ECG/EKG) report from Dr. K.K.A. The report documents a left ventricular ejection fraction of 69 percent. It also notes that there was evidence of "concentric left ventricular hypertrophy." In November 2009, the Veteran's representative submitted written argument in support of the claim. Notably, the representative asserted that the use of the PA-C's e-mail was not proper in that, inter alia, they did not examine the Veteran. Of record is a September 8, 2010, VA Compensation and Pension Examination note, documenting an assessment of ischemic heart disease, i.e., CAD, with an onset of 2006. The Veteran complained of continued angina symptoms. He also complained of increased fatigue and weakness, which required frequent breaks to rest. His METs level was noted to be 7 to 8. He was noted as able to walk slowly but steadily up stairs, perform light calisthenics, engage in intercourse and carry dishes. The heart was normal in size and his ejection fraction was greater than 50 percent, and estimated at 60 percent. Left ventricular systolic function was normal. There was mild aortic insufficiency, trace mitral regurgitation and trace tricuspid regurgitation. Wall motion and wall thickness were normal. Coronary artery disease, status-post coronary artery bypass graft times 2 with coronary artery stent placement was assessed. Of record is an April 19, 2011, VA cardiology consultation. The note documents a history of CAD status-post possible acute myocardial infarction by history in 2007, with coronary artery bypass graft (CABG) times 2 and a history of 9 coronary stents, all prior to the CABG but for 1. At this time, the Veteran complained of being tired and worn out all of the time. He reported chest pain, described as a squeezing sensation lasting 30 minutes to several hours daily, with associated nausea and weakness. He related that the chest pain may occur at rest, lying in a recliner, usually with activity, but not with the activities of daily living. He also related feeling shortness of breath with exertion. He tried to walk daily, but was limited by knee pain, although he did some exercise at a local gym and light housework. He reported that at his last myocardial perfusion scan he experienced "all the symptoms of a heart attack' and that he thought his "last [ejection fraction] was 60 percent by private cardiologists' office. The examining physician noted the results of the April 28, 2009, VA examination testing, particularly the estimated left ventricular ejection fraction of 60 percent. CAD continued to be assessed. Analysis Initially, the Board notes that the procedural protections regarding reduction of stabilized evaluations under 38 C.F.R. § 3.344 only apply to prospective rating reductions and are inapplicable to retroactively assigned staged disability ratings, assigned as part of an initial or increased disability evaluation. Thus, the provisions of 38 C.F.R. § 3.344, do not apply here to reductions in staged ratings. See Singleton v. Shinseki, 23 Vet. App. 376 (2010); Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009); O'Connell v. Nicholson, 21 Vet. App. 89 (2007). Initially, the Board finds that an evaluation of 100 percent is not warranted. The Veteran did not have coronary bypass surgery within 3 months prior to the period in question, nor did he have such surgery within the period on appeal. He had a CABG in July 2007. 38 C.F.R. § 4.104, Diagnostic Code 7017. Moreover, Despite his assertions, no history of myocardial infarction, including as documented by laboratory tests, is noted. 38 C.F.R. § 4.104, Diagnostic Code 7006. Otherwise, in order to substantiate such an evaluation, the evidence must demonstrate chronic congestive heart failure, workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. A review of the evidence above does not show any history of congestive heart failure. Moreover, the METs of record have never been assessed as 3 METs or less, and the Veteran's ejection fraction has not approached 30 percent or less. Fenderson, supra. In regards to the METs disclosed by the April 2009 VA examination, the Board does not find that they are reliable evidence in evaluating the Veteran's CAD. Indeed, METs were estimated at that time due to the Veteran's orthopedic disabilities resulting in his inability to perform stress testing. Under such circumstances, and with consideration of the clarification provided by the May 2009 PA-C, these METs are medically contraindicated. See 38 C.F.R. § 4.100(b)(i). Thus, a 100 percent evaluation is not warranted at any time during the applicable period. Fenderson, supra. Along these lines, the Board finds that an evaluation of 60 percent is likewise not warranted. Other than the medically contraindicated METs, the September 2010 VA examination notes a METs level of 7-8 on stress testing. Moreover, during VA examination in April 2009, left ventricular ejection fraction measured 60 percent. Notably, the left ventricular ejection fraction also measured 60 percent on VA examination in September 2010 and the Veteran has related a history of an ejection fraction of 60 percent assessed by his private doctor. As noted above, CAD has never manifested by congestive heart failure, even acute in nature. Accordingly, a 60 percent evaluation is not warranted at any time during the applicable period. Fenderson, supra. Nevertheless, the Board does find that, from May 27, 2009, through May 2, 2011, a 30 percent evaluation is warranted. Notably, the October 2, 2009, private treatment record, outlined above, documents evidence of "concentric left ventricular hypertrophy." This finding substantiates a 30 percent evaluation, which requires "evidence of cardiac hypertrophy." Also, the September 2010 METs estimate was 7 to 8. Seven falls within the 30 percent rating category. Thus, in resolving any doubt in the Veteran's favor, and despite the VA findings of normal wall thickness, the Board finds that the evidence more nearly approximates the criteria for the award of a 30 percent evaluation throughout the applicable period. Fenderson, supra. Thus, to this extent, the claim is granted. In reaching this decision, the Board notes the representative's assertion that the May 27, 2009, VA PA-C e-mail should not be relied upon in discounting the use of the METs in favor the ejection fracture evidence. However, the Board finds that despite the PA-C's note, the April 2009 examination report indicates that the use of stress testing and obtaining METs was contraindicated due to the Veteran's orthopedic problems and his recent hip replacement. The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the Board accepts the medical opinion of record as it is supported by the clinical evidence and contains a reasoned rationale for its conclusion. A 30 percent rating, and no higher, is warranted. Extraschedular Consideration According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. 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 evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's conditions with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The rating criteria specifically contemplate the Veteran's symptomatology as well as economic impairment. Specifically, he has angina and fatigue, which are directly contemplated by the criteria. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment over and above that which is contemplated in the assigned evaluation. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to a disability evaluation of 30 percent for CAD, but no greater, is granted from May 27, 2009, through May 2, 2011, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs