Citation Nr: 1337533	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  11-26 266	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to a higher initial rating for coronary artery disease ("CAD"), currently rated as 10 percent disabling.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).  

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Turner, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1963 to March 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio that in relevant part denied entitlement to an increased rating for CAD.  The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The Veteran's CAD is manifested by an ejection fraction of 62 percent, resulting in dyspnea and fatigue.


CONCLUSION OF LAW

The criteria for an initial rating of 30 percent for CAD have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Procedural Duties 

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims for a rating in excess of 10 percent for CAD.  See 38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).


A.  Duty to Notify

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Id.  

The initial rating appeal arises from a granted claim of service connection.  Compliance with the first notice element requires notice of the five service connection elements in initial ratings cases: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date.  See Dunlap v. Nicholson, 21 Vet. App. 112 (2006).

Prior to initial adjudication of the Veteran's claim, an August 2009 letter fully satisfied the duty to notify provisions, including notice of the degree of disability.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

B.  Duty to Assist 

The Board also concludes VA's duty to assist in obtaining records has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.   Private medical records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

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) (2013).

The RO provided the Veteran an appropriate VA examination in March 2012.  The Veteran has not reported receiving any recent treatment specifically for this condition (other than at VA and the private treatment mentioned above, records of which are in the file), and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings.  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 examination report provides sufficient evidence to apply the ratings schedule and to determine that the schedular rating is adequate to rate the disability.  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.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (mere passage of time does not require VA to provide a new medical examination); see also VAOPGCPREC 11-95.  The March 2012 VA examination report is thorough and supported by VA outpatient treatment records.  The examination in this case is an adequate basis on which to adjudicate the claim.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

II.  Increased Rating

The Veteran contends that he is entitled to a rating in excess of 10 percent for his CAD.  For the reasons that follow, the Board finds that an increased rating is warranted.

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. § 4.1 (2013).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2013).  However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided.  38 C.F.R. § 4.14 (2013).

Throughout the course of the appeal, the Veteran's service-connected coronary artery disease has been rated under 38 C.F.R. § 4.104, Diagnostic Code 7005.  Under this, a 10 percent rating is assigned when the coronary artery disease results in a workload of greater than 7 METs, but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required.  A higher 30 percent rating is assigned when the coronary artery disease 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 rating of 60 percent is assigned when a Veteran had more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A rating of 100 percent is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, Diagnostic Code 7005 (2013). 

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).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

In March 2012, the Veteran underwent a VA examination where his METs were estimated to be greater than three to five, resulting in dyspnea and fatigue.  The examiner noted that a recent left ventricular ejection fraction testing, conducted one week prior, had resulted in ejection fraction of 62 percent.  The examiner concluded that the Veteran's ejection fraction was a more objective means of assessing the underlying heart function over estimated METs.

The evidence of record indicates that the Veteran's estimated METs of greater than three to five, satisfies the Diagnostic Code for a sixty percent rating. The examiner, however, has opined that the ejection fraction was a more objective means of assessing the underlying heart function over estimated METs. Left ventricular dysfunction with an ejection fraction of 30 to 50 percent warranting a 60 percent evaluation is not demonstrated.  Viewing the evidence in a light most favorable to the Veteran, the Board finds that the evidence establishes that an initial rating of 30 percent more closely approximates the severity of the service-connected coronary artery disease.  See 38 U.S.C. § 5107(b).  



ORDER

Entitlement to an initial rating of 30 percent evaluation for coronary artery disease is granted, subject to the law and regulations governing the payment of monetary benefits.


REMAND

The Board must remand the TDIU issue for initial development. 

VA regulations allow for the assignment of a TDIU rating on a schedular basis when a veteran's schedular rating is less than total and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that (1) if there is only one such disability, that disability must be ratable at 60 percent or more, or (2) if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  See 38 C.F.R. 
§ 4.16(a) (2013).  When a veteran is unemployable by reason of service-connected disabilities and fails to meet the percentage standards under 38 C.F.R. § 4.16(a), the claim must be submitted to the Director of Compensation and Pension Service for extra-schedular consideration.  See 38 C.F.R. § 4.16(b) (2013).  The RO has not developed this theory of entitlement in the first instance.  The Board remands to ensure due process. 

Evidence on file indicates that the Veteran had to retire to the service-connected CAD.  See March  2012 VA examination.

Upon remand, the AOJ is requested to afford the Veteran proper notice under the VCAA as related to a TDIU claim and should clarify whether he wishes to pursue this claim.  In addition, the AOJ may decide to pursue further development of the Veteran's employment history, or to obtain additional medical evidence or a medical opinion, as is deemed necessary to develop the TDIU claim.  

After all appropriate development has been completed, the Veteran's TDIU claim should be adjudicated based on all evidence of record to include consideration of the provisions of 38 C.F.R. § 4.16(a) and (b), as applicable. 

Any updated treatment records should be obtained and associated with the claims file.

Accordingly, the case is REMANDED for the following actions:

1.  Provide the Veteran with notice in compliance with the VCAA that informs him of what evidence he must show to support a claim for TDIU.

The RO should also ascertain whether the Veteran wishes to pursue a TDIU claim.  In the event that he does, further action as described herein should be taken.  In the event that he does not, this fact should be annotated for the file and no further action is required.

2.  Obtain and associate with the claims file all pertinent updated VA and non-VA treatment records.

3.  After the above development has been completed, should the VLJ wish to pursue a claim for TDIU, schedule him for a VA examination to evaluate the impact his service-connected disability has on his employability.  The examiner must review the claims file and should note that review in the report.  The examiner must take a history of the Veteran's educational and employment background.  

The examiner should opine as to whether it is at least as likely as not (i.e. 50 percent or greater probability), less likely as not (i.e. less than 50 percent), or more likely than not (i.e. greater than 50 percent) that the service-connected coronary artery disease renders him unable to secure or follow a substantially gainful occupation.  

The examiner should consider such factors as the Veteran's education level, special training, and work experience. The rationale for any opinion offered should be provided.

4.  After all of the above actions have been completed, readjudicate the claim.  If the claim for TDIU is denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. 

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs