Citation Nr: 1334094 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 13-03 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating in excess of 10 percent for coronary atherosclerosis. REPRESENTATION Appellant represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active military service from February 1969 to December 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. FINDING OF FACT Coronary atherosclerosis is treated with continuous medication and a workload of greater than 7 metabolic equivalents (METs) but less than 10 METs results in fatigue; no congestive heart failure, left ventricular dysfunction or evidence of cardiac hypertrophy or dilation is shown. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for coronary atherosclerosis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code 7005 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases 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); see also Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). There has been no allegation of such error in this case. In any event, the Veteran received notification prior to the initial AOJ decision through a notice letter dated July 2010. The content of this notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (2012). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All other post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded a VA examination for his coronary atherosclerosis on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds the November 2010 examination and January 2011 addendum are adequate for the purposes of the evaluating the Veteran's coronary atherosclerosis, as it involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Merits Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected coronary atherosclerosis is currently evaluated at 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7005 (2012). The application of the evaluation criteria for the cardiovascular systems has guidelines for DCs 7000-7007, 7011, and 7015-7020. 38 C.F.R. § 4.100 (2012). When evaluating a disability under these codes, there must be a determination made as to 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 in all cases. 38 C.F.R. § 4.100(a). Here, the Veteran's treatment plan requires continuous medication for his coronary atherosclerosis. See November 2010 Disability Benefits Questionnaire. Additionally, an electrocardiogram, echocardiogram, and X-ray were performed and those showed no evidence of cardiac hypertrophy or dilation and no heart enlargement. See id; January 2011 VA Cardiology Echocardiogram; January 2011 VA Addendum Opinion. Additionally, even if the requirement for a 10 percent rating (based on the need for continuous medication) or 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) evaluation is met, METs testing is required in all cases except for a few exceptions. 38 C.F.R. § 4.100(b). If left ventricular ejection fraction (LVEF) testing is not of record, the disability is to be evaluated based on the 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. 38 C.F.R. § 4.100(c). In this instance, a METs test was conducted based on the Veteran's responses. See November 2010 Disability Benefits Questionnaire. Under Diagnostic Code 7005, arteriosclerotic heart disease with documented coronary artery disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, left ventricular dysfunction with an ejection fraction of less than 30 percent warrants a 100 percent evaluation. 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 warrants a 60 percent evaluation. A workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram or echocardiogram, or X- ray warrants a 30 percent evaluation. A workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required warrants a rating of 10 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2012). As a result of the Veteran's November 2010 VA examination, his examiner completed a Disability Benefits Questionnaire ("DBQ") detailing the effects of the Veteran's coronary atherosclerosis. The examiner indicated that the Veteran does not suffer from congestive heart failure. See November 2010 Disability Benefits Questionnaire. A January 2011 echocardiogram was performed. That test revealed that the Veteran's left ventricle function and size are both normal. See January 2011 VA Echocardiogram. Further, as discussed above, an electrocardiogram, echocardiogram, and X-ray were performed and those showed no evidence of cardiac hypertrophy or dilation and no heart enlargement. See id; January 2011 VA Addendum Opinion; November 2010 Disability Benefits Questionnaire. Finally, the examiner did not note that any workload of 7 METs or less results in dyspnea, fatigue, angina, dizziness or syncope. See November 2010 Disability Benefits Questionnaire. Instead, the examiner noted that a workload of greater than 7 METs but less than 10 METs results in fatigue. Id. Additionally, the Veteran's disability requires continuous medication. The evidence of record shows that the Veteran's symptomatology only mirrors the criteria for an initial rating of 10 percent for his service connected coronary atherosclerosis. See 38 C.F.R. § 4.104, Diagnostic Code 7005 (2012). The Board acknowledges the Veteran's submission of several private treatment records. However, after a review of those records, the Board finds nothing that would warrant an increased initial rating under 38 C.F.R. § 4.104, Diagnostic Code 7005 (2012). There is no evidence within those records, or the entire claims file for that matter, which would warrant a higher initial increased rating. The record does not establish that the rating criteria are inadequate for rating the Veteran's coronary atherosclerosis such that an extraschedular rating is warranted. The Veteran's disability results in a workload of greater than 7 METs but less than 10 METs causing fatigue. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In the event that there is anything in the record that implicitly raises a claim of TDIU, review of the overall evidence does not reflect that the coronary atherosclerosis alone precludes employment. On VA examination, it was specifically noted that the Veteran's heart disease had no impact on his ability to work. Further consideration of entitlement to a TDIU is not warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Therefore, the Board is unable to identify a reasonable basis for granting the Veteran's claim. ORDER Entitlement to an increased initial evaluation for coronary atherosclerosis, currently evaluated as 10 percent disabling, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs