Citation Nr: 1337285 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-00 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased initial rating for a coronary artery disease (CAD) in excess of 10 percent prior to June 8, 2012 and in excess of 30 percent as of June 8, 2012. ATTORNEY FOR THE BOARD Jacob Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1971 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia that granted service connection for coronary artery disease with scar, status post coronary artery bypass graft, an assigned an initial percent rating, effective July 27, 2009. A July 2012 rating decision increased the rating to 30 percent, effective June 8, 2012, the date of a VA examination. However, as that grant does not represent a total grant of benefits sought, this claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The Veteran's CAD did not manifest in a workload of 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilation prior to June 8, 2012. 2. The Veteran's CAD has not manifested more than one episode of congestive heart failure in a year; or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with ejection fraction of 30 to 50 percent as of June 8, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for CAD prior to June 8, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2013). 2. The criteria for a rating in excess of 30 percent for CAD have not been met as of June 8, 2012. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter sent in September 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, or other available evidence. VA has obtained examinations with respect to the claims that occurred in September 2009 and June 2012. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Disability ratings are determined by applying the criteria set forth in the 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 (West 2002) ; 38 C.F.R. § 4.1(2013). The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2013) . In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1 , 4.2 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2013). It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2013). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Coronary artery disease is rated under Diagnostic Code 7005. 38 C.F.R. § 4.104 (2013). The criteria include references to metabolic equivalents (METs). 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 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) (2013). The Veteran's CAD was rated 10 percent prior to June 8, 2012, and is currently rated at a 30 percent, as of June 8, 2012, under Diagnostic Code 7005. 38 C.F.R. 4.104 (2013). The Veteran asserts that a higher disability rating is warranted for CAD. Under Diagnostic Code 7005, a 100 percent rating is warranted for documented CAD that results in chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. A 60 percent rating is warranted for documented CAD that results in more than one episode of acute congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 to 50 percent. A 30 percent rating is warranted for documented CAD that results in 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 dilation on electrocardiogram, echocardiogram, or X-ray. A 10 percent rating is warranted for documented CAD that results in workload greater than 7 METs , but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. 38 C.F.R. 4.104, Diagnostic Code 7005 (2013). The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to June 8, 2012. The Board also finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent as of June 8, 2012. At a September 2009 VA examination, the examiner noted that the Veteran was first diagnosed with CAD in July 1996 and underwent surgery in August 1996 to clear a 90 percent blockage of the left anterior descending artery. The Veteran was subsequently prescribed continuous medication that consisted of aspirin, atenolol, and simvastatin to treat CAD. The examiner concluded that the Veteran's CAD resulted in a METs evaluation that consisted of 7 to 9, as the Veteran was able to achieve the activities of climbing steps at moderate speed and carrying objects weighing 60 to 90 pounds. The Veteran had experience fatigue and chest tightness six times in the previous year, but not angina, shortness of breath, dizziness, or syncopal attacks. The chest X-ray was within normal limits. Other evidence of record shows that prior to June 8, 2012, the Veteran was followed medically for CAD and was prescribed medication. The Board finds that the September 2009 VA examination most probative of the finding that a rating higher than 10 percent was not warranted for CAD prior to June 8, 2012. The medical records, Veteran's statements, and service medical records all confirm that the Veteran had CAD and was taking medication for CAD. There is no contradicting evidence in the Veteran's claims file or any other medical or lay evidence that rebuts the VA examiners medical findings. The Veteran's METs registered 7 to 9, as diagnosed by the VA examiner and the Veteran was found to have been prescribed medication. The chest X-ray was normal and no cardiac hypertrophy or dilation is shown in the evidence. Furthermore, there is no indication that during the VA examination that the Veteran exhibited a METs of 5 to 7 that would have entitled the Veteran to a rating of 30 percent. Those factors are the most probative in the finding that a rating greater than 10 percent was not warranted prior to June 8, 2012. Therefore, his claim to entitlement of an initially disability rating in excess of 10 percent prior to June 8, 2012 is denied. At a June 8, 2012, VA examination, an interview based METs test found that the Veteran's METs was 5 to 7 that resulted in fatigue and was been found to be consistent with activities such as walking one flight of stairs, golfing without a cart, mowing the lawn, and heavy yard work, such as digging. The Veteran did not have congestive heart failure. There was no evidence of cardiac hypertrophy or dilation. Chest X-ray and echocardiogram were normal. The heart disability affected the Veteran's ability to work by causing fatigue. Electrocardiogram found sinus bradycardia. A July 2012 rating decision increased rating for CAD to 30 percent disability rating, effective June 8, 2012, the date of examination. The Board finds the June 2012 VA examination to be most probative in the finding that a rating greater than 30 percent is not warranted as of June 8, 2012. There is no medical or lay evidence of record that indicates that the Veteran suffered from an acute congestive heart failure in the past year or has been evaluated with a METs greater than 3 but not greater than 5 that resulted in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent which would have otherwise qualified the Veteran for a higher disability rating. Therefore, the Board finds that a disability rating in excess of 30 percent for the Veteran's service connected CAD from June 8, 2012 forward, is not warranted. The Board has reviewed the Veteran's statements submitted in support of his claim of entitlement to a higher initial rating. In December 2011, the Veteran stated that since his CAD surgery in August 1996, he had experienced significant changes to his life. He had to take medication for CAD, he had to carry nitroglycerin tablets with him at all times, and he had been seen in the emergency room for chest pains. The Veteran also stated that his METs had been greatly diminished, as before the surgery he was an ultra-marathon runner and had also completed a 50 mile hike with combat gear, and scored extremely high on the United States Marine Corps physical fitness test. The Veteran stated that after his surgery he had never been able to attain his pre surgery fitness levels. However, the RO obtained the Jun 2012 examination based on those assertions by the Veteran to determine if his disability had worsened. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such as fatigue and chest pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification or diagnosis of congestive heart failure and estimation of METs requires medical expertise that the Veteran has not shown he possesses, and determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran's CAD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent clinical findings in conjunction with the evaluation. T he medical findings, as provided in the examination reports, directly address the criteria under which his disability is evaluated. The Board finds that evidence is the most persuasive in this case and outweighs the Veteran's statements in support of his claim. The Board has considered whether referral is warranted for consideration of the assignment of an extraschedular rating. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular rating commensurate with the average earning capacity impairment where there is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b) (2013). Extraschedular consideration involves a three step analysis. First, the Board must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular rating is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the Board finds that the schedular rating does not contemplate the Veteran's level of disability and symptomatology, then the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. If so, then the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). The Board finds that all of the experienced symptoms of the Veteran's CAD are contemplated by the schedular criteria. 38 C.F.R. § 4.104 (2013). The criteria provide examples of the types and degrees of symptoms for each level of compensation and the Veteran's symptoms are contemplated by those types of symptoms listed. Essentially, the Veteran has reported fatigue, chest tightness, taking medication, and a diminishment of his higher workload fitness level prior to his CAD surgery in August 1996. Examiners have assigned METs values for the Veteran's workload capability. Those METs levels are contemplated by the schedualar criteria. 38 C.F.R. § 4.104 (2013). The Veteran's symptoms are consistent with those listed in the schedular criteria. As to the severity of the symptoms, the schedular criteria contemplate the different levels of severity that the Veteran is currently experiencing, including higher levels. However, the Veteran does not meet the criteria for those higher ratings. Therefore, the Board declines to remand this matter for referral for extraschedular consideration because the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology and the assigned schedular rating is adequate. In determining whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002). The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 10 percent for CAD prior to June 8, 2012. The Board further finds that the preponderance of the evidence is against the Veteran's claim of entitlement to a rating in excess of 30 percent as of June 8, 2012. Therefore, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for CAD prior to June 8, 2012, is denied. Entitlement to a rating in excess of 30 percent for CAD as of June 8, 2012, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs