Citation Nr: 1333427 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-15 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected coronary artery disease (CAD). 2. Entitlement to increases in the ratings for CAD, (currently assigned "staged" ratings of 10 percent from February 6, 2006 to July 10, 2008; 30 percent from November 1, 2008 to January 13, 2010; and 60 percent from January 13, 2010 to June 13, 2013). 3. Entitlement to a rating in excess of 10 percent for hypertension. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1966 to May 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2008 and April 2013 rating decisions of the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO), that granted service connection for CAD rated 10 percent, effective February 6, 2006, and increased the rating for hypertension to 10 percent, effective February 7, 2006, and denied service connection for sleep apnea, respectively. A March 2009 rating decision increased the rating for CAD to 30 percent from November 1, 2008. [A temporary total 100 percent rating was assigned from July 10, 2008 to November 1, 2008 (for convalescence following a myocardial infarction and at the rate provided under the schedular criteria (Code 7006) for rating the disability following myocardial infarction). Therefore, that period of time is not for consideration herein.] A June 2013 rating decision increased the rating for CAD to 60 percent effective January 13, 2010 and to 100 percent from June 13, 2013. As staged ratings prior to June 13, 2013 provide for less than the maximum schedular rating available for such disability, and the Veteran has not expressed satisfaction with the ratings, the appeal continues. AB v. Brown, 6 Vet. App. 35 (1993). The matter of service connection for sleep apnea is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action, on his part, is required. FINDINGS OF FACT 1. Prior to July 10, 2008, the Veteran's CAD is not shown to have been manifested by workload of 7 or less, or cardiac hypertrophy or dilatation shown by electrocardiogram, echocardiogram, or X-ray. 2. From November 1, 2008 to January 13, 2010, the Veteran's CAD is not shown to have been manifested by more than one episode of acute congestive heart failure in the past year, workload of 5 METs or less, or, left ventricular dysfunction with an ejection fraction of 50 percent or less. 3. From January 13, 2010 to June 13, 2013, the Veteran's CAD is not shown to have been manifested by chronic congestive heart failure, workload of 3 METS or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 4. At no time during the period under consideration is the Veteran's hypertension shown to have been manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. Ratings for CAD rating in excess of 10 percent prior to July 10, 2008; in excess of 30 percent from November 1, 2008 to January 13, 2010; and/or in excess of 60 percent from January 13, 2010 to June 13, 2013 are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.104, Diagnostic Codes (Codes) 7006-7005 (2013). 2. A rating in excess of 10 percent for hypertension is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.104, Code 7101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Regarding the ratings for CAD, as the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A March 2009 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating; and July 2009, December 2009, and June 2013 SSOCs readjudicated the matter after the appellant responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). Regarding the rating for hypertension, in a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The appellant was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, a March 2009 SOC provided essential notice prior to the readjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). December 2009 and June 2013 supplemental SOCs (SSOCs) readjudicated the matter after the appellant was given opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA examinations in February 2009 and June 2013. The Board finds that reports of the examinations are adequate for rating purposes, as the examiners expressed familiarity with the history of the Veteran's disabilities, considered the evidence of record, conducted thorough examinations of the Veteran, and noted all findings necessary for adjudicating the claims. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record regarding these claims is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher one 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The relevant evidentiary window regarding the rating for hypertension begins in April 2007, one year before the vocational rehabilitation claim was filed in April 2008 (which the RO has acknowledged as a claim for an increased rating). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue during the entire period from the initial assignment of the disability rating to the present time is to be considered (and staged ratings may be assigned). See Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to these appeals. 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. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence.). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claims. CAD The Veteran's CAD is rated under Codes 7005 for arteriosclerotic heart disease (CAD). Under Code 7005, a 10 percent rating is warranted for CAD with workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted with workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where CAD results in more than one episode of acute congestive heart failure in the past year, or when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted where CAD results in chronic congestive heart failure, or when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or with left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. Where there has been a myocardial infarction, CAD may alternatively be rated under Code 7006, which provides for ratings identical to those under Code 7005, with the exception that the disability is to be rated 100 percent during and for three months following myocardial infarction, documented by laboratory tests. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. In February 2006, the Veteran presented to a VA hospital complaining of feeling faint and dizzy. He reported 1/10 sternal chest pressure, which resolved within minutes without any medication. On admission, the Veteran was found to be hypotensive and orthostatic with heart rate in the 55-60 range. Lab work revealed cardiac markers were all negative. The chief of nephrology stated that the Veteran had recently been started on beta blockers and this episode most likely represented the side effects of treatment. He was directed to continue his medications. A March 2006 record noted a left ventricular ejection fraction of 50-55 percent with discrete mild inferoapical hypokinesis. In May 2006, the Veteran presented to the ER complaining, in part, about a stent which was placed 10 days prior. He denied chest pressure, shortness of breath, abdominal pain, dizziness, or diaphoresis. In April 2006, an echocardiogram revealed an ejection fraction of 69 percent. Shortness of breath, fatigue, and orthostatis were noted, but considered to be likely from medication adverse effects. A May 2006 record notes the Veteran had a history of CAD and currently had no chest pain, dizziness, lightheadnessness, syncope, or palpitations. A November 2007 VA cardiology procedure report notes the Veteran had an estimated left ventricular ejection fraction of 60 percent. In December 2007, he was advised regarding diet and exercise. Private treatment records show the Veteran suffered an acute inferior wall myocardial infarction in July 2008. He underwent left heart catheterization, coronary arteriography, left ventriculography, a thrombectomy, angioplasty and stenting of the right coronary artery. As noted above, a 100 percent rating was assigned from July 10, 2008 to November 1, 2008 for convalescence following a myocardial infarction and at the rate provided under the schedular criteria. 38 C.F.R. § 4.104, Code 7006. On February 2009 VA examination, the examiner noted that the Veteran had his first heart attack in January 2006 and had two stents placed during that hospitalization. Three more stents were placed during the months following. The examiner noted that the Veteran "did well until July 2008" when he suffered another myocardial infarction. He had a cardiac catheter and three stents placed and "has done well since." On examination, a stress test revealed that the Veteran was functioning at 7 METs. Testing for left ventricular dysfunction revealed an ejection fraction of greater than 50 percent. X-rays showed the heart size to be normal. A May 2009 VA treatment record showed that the Veteran's left ventricular ejection fracture was estimated to be 60 percent. He was advised to continue his medications (ASA/Plavix) indefinitely. On January 2010, the Veteran presented to Barton Memorial Hospital complaining of chest pain. He reported that since his last cardiac catheterization in July 2008, he had been doing well and was asymptomatic, until now. A myocardial perfusion scan revealed a left ventricular ejection fraction of 45 percent. The impression was previous lateral and inferior wall infarct with mild hypokinesis. Chest imaging showed no evidence for acute cardiopulmonary disease. A February 2010 VA treatment record noted an estimated ejection fraction of 45 percent. In February 2011, a myocardial perfusion study revealed "partially reversible perfusion abnormality in the inferolateral wall in the mid to basal portion of the ventricle consistent with small infarction and moderate periinfarct ischemia. The ventricle is enlarged but function is normal." A December 2011 treatment record notes the Veteran had known CAD with worsening dyspnea and positive nuclear stress. It was noted that he had progressive onset with exertional component; there was no discrete chest pain or pressure, no orthopnea, swelling, palpitations, or syncope. A positive functional study was planned. At such procedure, his ejection fraction was 55 percent. On June 2013 VA examination, the Veteran reported that his condition has worsened since his last ratings examination. It was noted that CAD was diagnosed since 2006 and continuous medication was required for control. The examiner further noted that the Veteran suffered myocardial infarctions in 2006 and 2008; however, he did not have congestive heart failure, arrhythmia, heart valve conditions, infectious heart conditions, or pericardial adhesions. The examiner noted that the Veteran had a percutaneous coronary intervention (angioplasty) in December 2011, but had no other hospitalizations for his heart. On physical examination, his heart rate was 68 and a regular rhythm. An exercise stress street revealed 1-3 METs brought on symptoms of dyspnea, fatigue, and dizziness. It was also noted that a January 2010 echocardiogram revealed a left ventricular ejection fraction of 45 percent. Following this examination, the RO increased the Veteran's ratings for CAD to 60 percent effective January 13, 2010, based on a January 2010 echocardiogram showing an ejection fraction of 45 percent. A 100 percent evaluation (the highest schedular evaluation under Code 7005) was assigned effective June 13, 2013, based on June 2013 VA examination findings showing that his METs level was estimated to be between 1 and 3. Prior to July 10, 2008 For the period from February 6, 2006 to July 10, 2008, the Veteran's CAD is rated 10 percent. At no time prior to July 10, 2008 is it shown to have been manifested by a workload of 7 METs or less, or by cardiac hypertrophy or dilatation. The symptoms appeared to be controlled by medication. Accordingly, the Board finds that a rating in excess of 10 percent was not warranted. From November 1, 2008 to January 13, 2010 On July 10, 2008, the Veteran suffered a myocardial infarction, and from that date until November 1, 2008, the CAD was assigned a 100 percent schedular rating under Code 7006. From November 1, 2008 to January 13, 2010, the Veteran's CAD is rated 30 percent. At no time during this period was the Veteran's CAD manifested by more than one episode of acute congestive heart failure, a workload of 5 METs or less, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. On February 2009 VA examination, a stress test revealed functioning at 7 METs and testing for left ventricular dysfunction indicated an ejection fraction of greater than 50 percent. A May 2009 VA treatment record also showed an ejection fraction of approximately 60 percent. Thus, from November 1, 2008 to January 13, 2010, a rating in excess of 30 percent is not warranted. From January 13, 2010 to June 13, 2013 For the period from January 13, 2010 to June 13, 2013, the Veteran's CAD is rated 60 percent. At no time during this period is it shown to have been manifested by chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. A January 2010 private treatment record and a February 2010 VA treatment record each notes an ejection fraction of 45 percent. In December 2011, the ejection fraction was noted to be 55 percent. Accordingly, a rating in excess of 60 percent is not warranted for the period from January 13, 2010 to June 13, 2013. Accordingly, the Board finds that the current ratings are appropriate and that there is no basis for awarding a higher rating for any period of time under consideration. Hypertension Hypertension is rated under Code 7101, which provides for a 10 percent rating when diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or for a history of diastolic pressure predominantly 100 or more and requiring continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or, systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104. Clinical records during the appeal period reflect that the Veteran's diastolic blood pressures ranged from 54 (July 2009) to 85 (January 2010) and his systolic pressured ranged from 95 (July 2008, October 2008, and April 2009) to 147 (August 2009). On February 2009 VA hypertension examination, the Veteran's blood pressures were 112/72, 113/66, and 110/70. On June 2013 VA hypertension examination, the Veteran reported that his blood pressure has stabilized since his last rating examination, but stated that he underwent further heart procedures in 2011 and so must keep his blood pressure in the normal range. The examiner noted that the Veteran's treatment plan included taking continuous medication. It was further noted that the Veteran does not have a history of a diastolic blood pressure elevation to predominantly 100 or more. Blood pressure was 120/80 on three readings. The factual evidence does not warrant a schedular rating in excess of 10 percent for hypertension. At no time during the appeal period were diastolic pressures predominantly 110 or more or systolic pressures predominantly 200 or more. Consequently, a schedular rating in excess of 10 percent is not warranted. The Board has also considered whether this matter should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b). See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Therefore, the manifestations of hypertension demonstrated (essentially blood pressure readings and associated impairment of function) are specifically contemplated by the schedular criteria (as discussed above), and those criteria are therefore not inadequate. The Veteran is assigned a a 100 percent schedular rating for service connected disability. The issue of entitlement to a total disability based on individual unemployability (TDIU) is not raised separately in the context of the instant claim (it is not alleged that hypertension of itself renders him unemployable). See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has considered the benefit of the doubt rule (see 38 C.F.R. § 3.321); however, as the preponderance of the evidence is against this claim, that rule does not apply. ORDER The appeal seeking ratings for CAD in excess of 10 percent prior to July 10, 2008, in excess of 30 percent from November 1, 2008 to January 13, 2010, and/or in excess of 60 percent from January 13, 2010 to June 13, 2013 is denied. A rating in excess of 10 percent for hypertension is denied. REMAND Regarding service connection for sleep apnea, while the notice provisions of the VCAA appear to be satisfied, further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to this claim. See 38 C.F.R. § 3.159. It is not shown or alleged that sleep apnea was manifested in, or is directly related to, the Veteran's service. The Veteran's theory of entitlement is one of secondary service connection. He contends that his sleep apnea is secondary to his service-connected CAD. The question of whether or not CAD has an impact on sleep apnea is one that is inherently medical in nature. Obstructive sleep apnea was diagnosed on December 2011 VA examination. The examiner opined that the Veteran's sleep apnea was not caused by CAD, as CAD is not considered a risk factor for sleep apnea. Secondary service connection is warranted for a disability that was caused or aggravated by a service-connected disability; any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability may be service connected. Governing law/caselaw provide that when adjudicating a secondary service connection claim VA must address the aggravation aspect of such claim. Furthermore, adjudicators may not rely on their own medical knowledge. Because the December 2011 examiner did not address whether the Veteran's service-connected CAD has aggravated his sleep apnea, the examination report (nexus opinion) is inadequate for rating purposes; a remand to secure a supplemental medical opinion in the matter is necessary. Accordingly, the case is REMANDED for the following: 1. The Veteran's claims file should be returned to the December 2011 examiner for review and a supplementary medical opinion regarding whether there is a nexus between the Veteran's sleep apnea and his service-connected CAD, and specifically whether or not the Veteran's sleep apnea is/has been aggravated by his CAD. If the opinion of the examiner is that sleep apnea was indeed aggravated by CAD, the examiner should specify, so far as is possible, the degree of sleep apnea that has resulted from such aggravation (i.e., identify the baseline level of severity of the sleep apnea). The examiner must explain the rationale for the opinion, citing to supporting factual data/medical literature, as deemed indicated. 2. The RO should then review the record and readjudicate the claim remaining on appeal. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs