Citation Nr: 1334855 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 11-08 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for ischemic heart disease. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to February 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. This rating decision granted entitlement to service connection for ischemic heart disease and assigned a 10 percent evaluation. During the pendency of the appeal, in a February 2011 rating decision, the RO assigned an increased evaluation of 30 percent effective October 29, 2008 for the Veteran's ischemic heart disease. With respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. See AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT The Veteran's ischemic heart disease is manifested by complaints of dyspnea and a workload of 5-7 METs (metabolic equivalents). CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1155, 5103 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA 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, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Prior to the initial rating decision in this matter, a June 2010 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. Therefore, the duty to notify has been satisfied. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been proven and thus section 5103(a) notice is no longer required because the purpose that the notice is intended to serve has been fulfilled). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). The Veteran was afforded a VA medical examination in June 2011 to determine the severity of his ischemic heart disease. This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file. The examiner obtained an accurate history. The examiner provided a detailed explanation for the opinions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Increased Rating 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). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was 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 contends that his ischemic heart disease should be awarded a higher evaluation throughout the appeal period. For the reasons discussed below, the Board finds that no higher evaluation is appropriate. Under 38 C.F.R. § 4.104, Diagnostic Code 7005 a 30 percent rating is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; when a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted for chronic congestive heart failure, or; 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. Id. 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). In a July 2010 statement from the Veteran's private physician it was noted his coronary artery disease symptoms included shortness of breath and chest pain. At his July 2010 VA examination the Veteran reported undergoing catheterization and an angioplasty in 2008. He had no history of myocardial infarction, heart rhythm disturbance, valvular heart disease, congestive heart failure, dizziness, syncope, or fatigue. He had dyspnea, or shortness of breath, on exertion. On examination there was no evidence of congestive heart failure, pulmonary hypertension, or abnormal breath sounds. He had an estimated workload of 10 METs with the ability to walk at a brisk pace. In an October 2010 VA treatment record the Veteran reported no shortness of breath or chest pain. In a March 2011 private treatment record the Veteran denied shortness of breath, wheezing, or chest pain. See also September 2011 VA treatment record. Again in March 2012 the Veteran denied shortness of breath, chest pain, and dizziness. At the Veteran's June 2011 VA examination he reported no history of congestive heart failure, coronary bypass surgery, or myocardial infarction. He did have percutaneous coronary intervention in 2008. The Veteran reported symptoms of dyspnea, or shortness of breath, when doing activities such as golfing, mowing the lawn, or performing heavy yard work. The examiner determined this was analogous to experiencing shortness of breath with a workload of 5-7 METs. He denied fatigue, angina, dizziness, or syncope. There was no evidence of cardiac hypertrophy or dilatation. Electrocardiogram testing and chest x-rays were performed revealing normal sinus rhythm, but abnormal QRS-T angle and prolonged QT. In reviewing all the evidence of record, the Board finds that a 30 percent evaluation is appropriate for the entire period on appeal. A higher evaluation is not warranted as the Veteran's ischemic heart disease is not manifested by congestive heart failure, or a workload of less than 5 METs. There is also no evidence of left ventricular dysfunction with an ejection fraction of 50 percent or less. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. The Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that warrants the assignment of a 30 percent rating. See 38 C.F.R. § 4.7. The Board has also considered whether a separate and/or higher rating may be assigned for the Veteran's ischemic heart disease. However, there is no evidence that the Veteran's heart disorder would be better classified under a different diagnostic code in 38 C.F.R. § 4.104. The remaining heart codes all have the same criteria as Diagnostic Code 7005, for which the Veteran has already been assigned a 30 percent evaluation. See e.g., Diagnostic Codes for valvular heart disease, pericarditis, hypertensive heart disease, and cardiomyopathy. In addition to the medical evidence, the Board has considered the statements of the Veteran in support of his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); 38 C.F.R. § 3.159(a)(2). However, as a layman, without the appropriate medical training and expertise, the Veteran is not further competent to provide a probative (persuasive) opinion on a medical matter, especially the severity of his ischemic heart disease in relation to the applicable rating criteria. The VA examiners have taken into account the Veteran's subjective complaints and performed objective testing to determine the overall severity of his ischemic heart disease. This determination is multi-factorial, not just predicated on lay statements and other testimony, rather, all of the relevant medical and other evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board finds that there is no probative evidence of record to support an increased rating for the Veteran's ischemic heart disease at any time during this appeal period. The preponderance of the evidence is against the Veteran's claim for a higher rating. Consequently, the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Extra-Schedular Consideration There is no evidence of exceptional or unusual circumstances to warrant referring this claim for extra-schedular consideration. 38 C.F.R. § 3.321(b)(1). The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a determination of whether the evidence presents such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, there must be a determination of whether the Veteran's exceptional 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 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 extra-schedular rating under 38 C.F.R. § 3.321(b)(1). The Veteran's service-connected disorder is appropriately rated. His primary symptom is dyspnea, although he has also reported chest pain at some evaluations. All of his symptoms are accounted for in the regular schedular rating criteria. According to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Indeed, in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), the Court reiterated this, noting the disability rating, itself, is recognition that industrial capabilities are impaired. As the assigned schedular evaluations for the service-connected disorder is adequate, referral for an extra-schedular rating is unnecessary. Thun, supra. Furthermore, there is no evidence of any exceptional or unusual circumstances, such as frequent hospitalizations, suggesting he is not adequately compensated for this disability by the regular Rating Schedule. The June 2011 VA examiner also found the Veteran's ischemic heart disease did not prohibit the Veteran from employment. Extra-schedular referral is not warranted under the circumstances presented. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Entitlement to an evaluation in excess of 30 percent for ischemic heart disease is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs