Citation Nr: 1336097 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-10 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial rating greater than 10 percent for service-connected arteriosclerotic heart disease (coronary heart disease). REPRESENTATION Appellant represented by: Grand Traverse County Department of Veterans Affairs ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from February 1969 to October 1970. The Veteran had active military service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran seeks an increased rating for his service-connected coronary artery disease, currently rated at 10 percent disabling. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's coronary heart disease did not result in acute or chronic congestive heart failure in the past year; dyspnea, fatigue, angina, dizziness, or syncope did not result from a workload between five and seven METs; no evidence of cardiac hypertrophy or dilation is found; nor does the evidence show left ventricular dysfuncion with an enjection fraction of less than thirty percent. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, 5013, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.20, 4.130, Diagnostic Code 7005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). The appeal arises from a disagreement with an initial rating decision in June 2011, which granted service-connection for coronary artery disease at 10 percent disabling. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records, records from the Cardiology and Vascular Associates, P.C., St. Joseph Mercy, and records from the Veteran's private treating physician. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A Disability Benefits Questionnaire for Ischemic Heart Disease was conducted on the Veteran in April 2011. In May 2011 VA performed a transthoracic echo report to exam the Veteran's heart and cardiac functioning. 38 C.F.R. § 3.159(c)(4). At the IHP exam the examiner reviewed the Veteran's complaints, medical history, conducted a physical examination and gave a diagnosis. Similarly with the May 2011 transthoracic echo report the examiner examined the Veteran's measurements, reported findings, and gave a conclusion. Since the examinations included sufficient detail as to the current severity of the Veteran's coronary artery disease, the Board concludes that the examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Legal Criteria The Veteran has been assigned a 10 percent disability rating for coronary artery disease effective August 2010. The Veteran seeks an initial rating of 30 percent or greater. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary heart disease). Under the Rating Schedule, in rating diseases of the heart, one MET (metabolic equivalent) 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 rating, 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. The criteria for rating coronary artery disease under Diagnostic Code 7005, are as follows: A 10 percent disability rating is assigned for a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. A 30 percent disability rating is assigned where there is 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, echocardiogram, or X-ray. A 60 percent rating is assigned where the evidence demonstrates 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. Finally, a 100 percent rating is assigned where the evidence demonstrates 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Background The claims file contains evidence of the Veteran's ischemic heart disease, and related coronary problems since 2001. The Veteran reported to the VA examiner at his IHP DBQ in April 2011, that he had a heart attack in 2001, and since then has gone to the Emergency Room three or four times. In April 2001 the Veteran was admitted for a cardiac catheterization. The procedure included a left heart catheterization, coronary angiogram, and a left ventriculogram. The Veteran was diagnosed with coronary artery disease with a heavy clot apparent in the proximal left anterior descending. The coronary angiography showed that the left main coronary artery was free of disease, the left anterior descending had a 70-80% lesion that was almost a clot with small ulcerated plaque. The circumflex vessel was free of disease after the embolization of the clot, and the right coronary artery was a dominant vessel with no audiographic evidence of artherosclerotic disease. A left ventriculography showed an ejection fraction of 59-60%. The conclusion from the doctor was that the Veteran had normal ejection fraction as well as minimal coronary disease. In February 2004 another cardiac catheterization was performed on the Veteran in which the findings were that the Veteran was free of disease or essentially free of disease in his left main coronary artery, left anterior descending coronary artery, and right coronary artery. The Veteran's ejection fraction was 65% with no wall motion abnormalities. Private records from Cardiology and Vascular Associates, P.C., were acquired by the RO. In May 2001 the examiner stated that the Veteran was "doing extremely well. He has no shortness of breath. He has no complaints of chest pain or shortness of breath." The Veteran's lungs were clear, with a regular heart rate and rhythm and the Veteran "had a fair amount of myocardial damage". A June 2001 echocardiogram report (EKG), stated that the Veteran suffered from cholesterol, murmur, PTCA with stent, myocardial infarction two months ago with clot in artery. The aortic root, aortic valve, left atrium, right ventricle, and left ventricle were all found normal. The mitral valve appears to be slightly thickened with mil mitral valve prolapse. The Veteran's overall ejection fraction appears to be approximately of 75 percent. In November 2001 the Veteran's calculated left ventricular ejection fraction was 69 percent. An exercise test was conducted on the Veteran in November 2001where the Veteran exercised for 11 minutes and had a max METS of 12.9, the Veteran reported symptoms of shortness of breath, and the test was terminated due to fatigue. The Veteran did not have "angina-like chest discomfort", and the Veteran's blood pressure was normal. In review of the stress test, the Veteran stated that the Veteran had "substantial chest pain that was most likely related to his GERD. Currently, he is doing quite well. He has no chest pain or shortness of breath." The examiner stated that the Veteran had a heart catheterization. In January 2003, the Veteran underwent an exercise test where he had a max METS of 12.9, exercised for eleven minutes, had shortness of breath symptoms, and terminated the exercise test due to shortness of breath and fatigue. In January 2004, the Veteran's exercise test showed max METS of 12.9, exercised for 11 minutes, stated no symptoms, and that fatigue was the reason for the termination of the exercise test. The conclusions found by the examiner was that the Veteran did not have exercised induces chest pain or arrhythmias, and had a good exercise tolerance. Similar results were reported in the Veteran's exercise test in February 2005. In review of the Veteran's exercise test the examiner stated that the Veteran did not have evidence of stress induced ischemia, had a fixed defect from his prior myocardial infarction, and normal left ventricular systolic function with an estimated ejection fraction of 75 percent. In March 2006 the Veteran's exercise stress report showed a max METS of 12.9 and was able to exercise for 12 minutes. The review of the stress report stated estimated ejection fraction of 72 percent. In April 2007 the Veteran underwent a Nuclear Myocardial Perfusion Imaging Treadmill Stress Test. The Veteran performed treadmill exercise for 12 minutes with an estimated work load of 12.9 METS. The Veteran reported symptoms of shortness of breath, and the stress test was terminated due to fatigue. The findings and conclusion from the stress test was that the Veteran's baseline electrocardiogram displayed normal sinus rhythm, no changes to the EKG due to exercise, normal blood pressure, and the patient's exercise tolerance was good. The Veteran had a fixed defect compatible with prior myocardial infarction, and had a normal left ventricular systolic function with calculated ejection fraction of 69 percent. The May 2008 stress test had similar results and findings. In May 2009, the Veteran exercised for 10 minutes and 15 seconds, with identical findings except that the Veteran had occasional premature atrial contraction, and his calculated ejection fraction was 72 %. In review of the May 2009 stress test, the doctor stated that during the stress test the Veteran "showed no ischemia, no PVCS, no hypertension and no other abnormalities. He had no cardiovascular complaints." In October 2007, the Veteran went to the emergency room and was given a diagnosis of vertigo based on a chief complaint of dizziness. The Veteran stated that every time he bends down, he gets some dizziness that occurs. Upon physical examination the Veteran's cardiovascular system revealed no abnormal sounds or murmurs. In April 2011the Veteran underwent a VA Disability Based Questionnaire for Ischemic Heart Disease (IHD). The examiner found that the Veteran has a diagnosis of IHD, and takes continuous medication as treatment. The Veteran stated that he takes aspirin, and nitroglycerin as needed. The examiner reviewed the Veteran's medical history, and gave a cardiac functional assessment. The examiner stated that the Veteran was able to perform at 13.4 METs as shown by the most recent diagnostic exercise testing. The examiner further found that there was no evidence of cardiac hypertrophy or dilatation. This was based on a review of an EKG, chest X-ray, and echocardiogram, from April 2011. The examiner also noted that the Veteran's left ventricular ejection fraction was 55-60% based on testing done in April 2011. The examiner stated that the Veteran's IHD does not impact the Veteran's ability to work. The Veteran gave his cardiac history to the examiner, and stated that he has had shortness of breath his whole life going up stairs, and currently he gets lightheaded when he bends over and stands up. Chest pain and shortness of breath occur when the Veteran walks up two flights of stairs. The Veteran also stated that he has boat, walks in the woods on his property, is able to walk a mile or two, cuts his lawn with a self-propelled lawn mower, is able to vacuum once in a while, can carry groceries and can walk uphill slowly. The Board has considered the aforementioned evidence and concludes that the 10 percent evaluation assigned to the Veteran under Diagnostic Code 7005 is appropriate. Since 2001 the Veteran has frequently registered workloads of METs between 12 and 13. The evidence of record does not show the Veteran having a METs less than 7, nor is there evidence which shows the Veteran's typical functioning is less than 7 METs. While, the Veteran went to the emergency room for dizziness in October 2007, and told the VA examiner in April 2011 that he suffers from shortness of breath, these are not constant symptoms to the Veteran. The Veteran also stated that he can walk, can do household chores, and that upon exertion his symptoms become present. Furthermore, any dyspnea, fatigue, angina, dizziness, or syncope must be the result of diminished METs in order to be compensable under the rating criteria. Thus, the Veteran's long history of METs between 12 and 13 prevents the Veteran from a disability rating higher than 10 percent. The Veteran is not entitled to a 30 percent disability rating under Diagnostic Code 7005 based on hypertrophy or dilation as evidence by an electrocardiogram, echocardiogram, or X-Ray. The VA examiner stated in the April 2011 DBQ for IHD that there was no evidence of cardiac hypertrophy or dilatation. This finding was based on electrocardiogram, echocardiogram, and X-Rays performed in April 2011. The Veteran is similarly, not entitled to a 60 percent disability under Diagnostic Code 7005 because his left ventricular ejection fraction has consistently been between 55% and 72%. A left ventricular ejection fraction between 30% to 50% is required for a 60 percent disability rating, and as such is not an appropriate rating for the Veteran's disability. The 60 percent criteria may be fulfilled by a Veteran's symptoms if they have more than one acute congestive heart failure in the past year, and a 100 percent rating is warranted when the Veteran has chronic congestive heart failure. The Veteran had a myocardial infarction in 2001, with cardiac catheterizations in 2001 and 2004. Other than these incidents, the Veteran has had routine medical examinations, in the form of stress tests, echocardiograms, and similar physicals. The Veteran has not experienced more than one acute congestive heart failure within the past year. Therefore, a rating of 60 percent and 100 percent disability based on congestive heart failure is not warranted. The Veteran has consistently recorded METs of 12-13, does not have cardiac hypertrophy or dilatation, has consistently had a left ventricular ejection fraction over 50 percent and does not have acute congestive heart failure within the past year, and does not have chronic congestive heart failure. Therefore the Veteran's current disability rating of 10 percent is appropriate for the Veteran's reported symptoms. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule 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). 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. See 38 C.F.R. § 3.321(b)(1)(2011); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not identify any factors which may be considered to be exceptional or unusual with respect to the Veteran's service-connected coronary artery disease. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The Veteran's shortness of breath, occasional dizziness, and METs workloads are adequately contemplated by the rating criteria under Diagnostic Code 7005. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's coronary artery disease presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Thus, referral of this issue to the appropriate VA officials for consideration of extraschedular evaluations is not warranted in this case. In Rice v. Shinseki, the Court held that a claim for TDIU (total disability rating for compensation based on individual unemployability) is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability). In the Veteran's Notice of Disagreement received in November 2011, the Veteran stated that "to find a job at 64 yrs old with heart history in this economy is very grim." However, there is a lack of evidence which shows that the Veteran is unemployable, or is unemployed because of his coronary artery disease. There is also no claim or statement from the Veteran or his representative which contends that his coronary heart disease has prevented him from finding employment. The April 2011 VA DBQ for IHD additionally states that the Veteran's disability does not impact his ability to work. Accordingly, the Board finds that a claim for total disability rating for compensation based on individual unemployability is not raised by the record. ORDER A rating in excess of 10 percent for service-connected coronary artery disease is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs