Citation Nr: 1333784 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 11-28 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 10 percent for coronary artery disease REPRESENTATION The Veteran represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from October 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issue of entitlement to service connection for erectile dysfunction has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT At all relevant times, the Veteran's coronary artery disease was productive of a workload greater than 7 metabolic equivalents (METs) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, with continuous medication required. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.100, 4.104, Diagnostic Code 7005 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Where, as here, the appeal stems from notice of disagreement with the award of an initial disability rating following the grant of service connection, further VCAA notice is not required. 38 C.F.R. 3.159(b)(3). Rather, the Veteran's appeal as to the initial rating assignment triggers VA statutory duties under 38 U.S.C.A. § 5104 and § 7105. In this regard, a statement of the case was issued in October 2011 which set forth the diagnostic code criteria to be satisfied to warrant a higher initial rating for coronary artery disease. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, private records, and afforded the Veteran VA examinations in July 2010 and February 2013. The reports of the VA examinations included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. Therefore, the Board concludes that the VA examinations are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained 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. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is service connected for coronary artery disease, currently rated at 10 percent. At all relevant times, the Veteran argues his disability warrants a higher rating. Coronary artery disease is rated under Diagnostic Code 7005. This Diagnostic Code provides for a 10 percent evaluation for a workload 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 evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a 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. A note prior to the Diagnostic Code explains 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. 38 C.F.R. § 4.104, Note (2). Facts Treatment reports from private medical facilities, received by VA in April 2010, show that the Veteran was diagnosed with coronary artery disease in 1997and received a stent to the right coronary vessel in December 1997. In October 2009, the Veteran was found to have mid left anterior descending lesion that was also stented. He has continued medical treatment and medication since that time, including after filing his claim for service connection in March 2010. At a VA examination in July 2010, the Veteran reported angina once per week when he does too much. The examiner noted there are no signs of congestive heart failure, pulmonary hypertension and no other history of heart disease. There was no history of dizziness, fatigue, dyspnea, syncope, wheezing, non-anginal chest pain, hemoptysis, fever, anorexia, night sweats, or any type of cough. Stress test results show METs (metabolic equivalent) of 9. The examiner noted the heart size was normal determined by electrocardiogram. The ejection fraction was greater than 50 percent. The Veteran was employed as a supervisor in laminate flooring. He avoided heavy lifting but otherwise there was no effect on his occupation or usual daily activities. The diagnosis was coronary artery disease. A VA medical outpatient note dated June of 2011 stated that the Veteran had no complaints of chest pain, shortness of breath or palpitations and he continued to take medication for the coronary artery disease. The Veteran appeared well and no cardiac abnormalities were noted in the physical examination. The medical provider characterized the Veteran's ischemic cardiomyopathy as stable and well-compensated. At the February 2013 VA examination there was no signs of congestive heart failure or pulmonary hypertension. The Veteran did not have any history of recurrence of any symptomatic stenosis since the 2009 stent placement and there was no history of myocardial infarction or congestive heart failure. Upon examination, the Veteran had normal rhythm and heart sounds. The peripheral pulses were normal and there was no peripheral edema. His blood pressure was 1 51/73. There was no evidence of cardiac hypertrophy or dilatation and he had a normal chest X-ray. The examiner did note bradycardia but that was attributed to medication. Stress test results did not state the METs (metabolic equivalent), but the Veteran reported no symptoms (dyspnea, dizziness, fatigue, syncope, or angina) with physical activity. The examiner noted that the exercise stress test conducted in 2012 was the best indication of the Veteran's current level of cardiac function, and the 2012 exercise stress test was normal according to the examiner. The examiner noted normal heart size as determined by electrocardiogram. The left ventricular ejection was 60 percent with normal wall motion and thickness. The examiner concluded the Veteran's heart condition did not impact the Veteran's ability to work as a supervisor in hosiery manufacturing and later as a quality control technician for a flooring company. He voluntarily retired at age 65 due to age. Analysis After reviewing the evidence before the Board, the Board has determined that the Veteran is not entitled to a rating higher than 10 percent for coronary artery disease. The VA examinations demonstrated medical evidence METs of 9 or higher. To warrant a 30 percent rating, the evidence must establish greater than 5 METs but not greater than 7 METs. Moreover, at all relevant times, the Veteran had an ejection fraction of greater than 50 percent. The Diagnostic Code requires not only the presence of workload in METs in certain ranges but further requires that the specified workload results in dyspnea, fatigue, angina, dizziness or syncope. 38 C.F.R. § 4.104, Diagnostic Code 7005, Note 2. In the present case, the evidence does not reflect the presence of these symptoms required for a higher rating. There also is no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. In sum, the schedular criteria that warrant a 30 percent rating or higher has not been established by the evidence of record. The Veteran points to his medications as well as the medications he has to take for other nonservice-connected disabilities such as cholesterol and high blood pressure and that he has never passed a stress test. He also argues that additional complications could occur. The factors cited by the Veteran, however, are not listed as part of the schedular criteria for Diagnostic Code 7005. The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Further, as to what complications could happen in the future, a rating for a service-connected disability is determined by comparing current symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based as far as practical on average impairment in earning capacity. See also Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern). The Board has considered the Veteran's lay assertions. For instance, he avoids heavy lifting. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes, nor is she competent to attribute any symptom or abnormality to his service-connected disability. That involves specialized medical knowledge or training. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Such competent evidence concerning the nature and extent of the Veteran's coronary artery disease disability have been provided by the medical personnel who have examined him during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology or their relationship to his service-connected coronary artery disease disability. In sum, none of the evidence during this period demonstrates a workload of 5-7 METs resulting in dyspnea, fatigue angina, dizziness or syncope. The evidence during this period also fails to reflect any episodes of acute congestive heart failure or evidence of left ventricular dysfunction with an ejection fraction of 50 percent or less. As the assigned 10 percent evaluation reflects the actual degree of impairment shown since the date of the grant of service connection for the Veteran's coronary artery disease, there is no basis for staged ratings for this claim. Accordingly, for the reasons explained above, the preponderance of the evidence is against a rating higher than 10 percent for coronary artery disease, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability levels and symptomatology to the Rating Schedule, the levels of disability are encompassed by the Rating Schedule. Higher ratings are provided for more severe conditions relating to coronary artery disease as demonstrated by the smaller METs results or ejection fracture results. There is no evidence that the Veteran has lost time at work for the heart disability or, other than avoiding heavy lifting, he has need any accommodations or made adaptations for work. That one restriction, alone, is not sufficient to make his disability picture so exceptional that the available ratings are inadequate. The Board notes that the Veteran's normal stress test and his demonstrated METs level of 9 in 2010, with no symptoms on exertion in 2013 are on the border of a compensable rating. Even with limitations on heavy lifting, there is no reason to find that the level of disability due to the Veteran's coronary artery disease is greater than that assigned under the rating schedule. Until he retired because he turned 65, the Veteran was apparently is able to perform his duties to the satisfaction of his employer. In light of the foregoing, the assigned schedular ratings are adequate and no referral for an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). In other words, the Board finds that the rating criteria reasonably describe the coronary artery disease and it symptomatology, and these symptoms are contemplated by the Rating Schedule under Diagnostic Code 7005, and the Veteran does not have any symptomatology not already contemplated by the Rating Schedule. Claim for Total Disability Based Upon Individual Unemployability During the appeal period, the Veteran has not expressly raised and the record does not reasonably raise a claim for total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). As noted, although the evidence suggests that the Veteran's disabilities may have slightly affected his employment in the performance of his duties and the severity of the symptoms have been discussed, the Veteran secured and maintained a job until he voluntarily retired because of age. Therefore, in the circumstances of this case, the Board finds that entitlement to a total disability rating based on individual unemployability has not been raised by the record. ORDER Entitlement to an initial rating in excess of 10 percent for service-connected coronary artery disease is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs