Citation Nr: 1337859 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-20 674A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased initial disability rating for coronary artery disease (CAD), status-post coronary artery bypass graft (CABG) surgery, with hypertension, evaluated as 30 percent disabling from October 1, 2006 to June 24, 2007, and as 60 percent disabling from June 25, 2007. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The Veteran served in active service from March 1985 to May 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for CAD, status post CABG surgery, with hypertension and awarded a 100 percent evaluation from April 26, 2006, pursuant to 38 C.F.R. § 4.30; a 100 percent evaluation from June 6, 2006 pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7017; and a 30 percent evaluation effective from October 1, 2006, pursuant to 38 C.F.R. § 4.104 , Diagnostic Codes 7005 and 7017. During the course of the appeal, and specifically by a February 2008 rating action, the RO assigned an effective date of July 24, 2006 for the grant of service connection for CAD, status post CABG surgery, with hypertension; confirmed the 30 percent evaluation from October 1, 2006 through June 24, 2007; and awarded a 60 percent evaluation from June 25, 2007. In November 2010 and April 2012, the Board remanded the Veteran's claim to the VA Appeals Management Center (AMC) for further evidentiary development. This development has been completed and the Veteran's claims file has been returned to the Board for further appellate proceedings. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The VVA file includes an October 2013 Informal Hearing Presentation from the Veteran's representative. The other documents in the VVA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. From October 1, 2006 to June 24, 2007, CAD, status-post CABG surgery, with hypertension, was characterized by a workload of greater than 5 to 7 METs without acute congestive heart failure or left ventricular dysfunction. 2. Beginning June 25, 2007, CAD, status-post CABG surgery, with hypertension has not resulted in chronic congestive heart failure, a 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. CONCLUSION OF LAW The criteria for an initial rating for CAD, status-post CABG surgery, with hypertension in excess of 30 percent from October 1, 2006 to June 24, 2007, and in excess of 60 percent beginning June 25, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.7, 4.104, Diagnostic Codes 7017 and 7005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Veteran's Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In any event, however, the statutory scheme contemplates that, once a decision awarding service connection, a disability rating, and an effective date have been made, statutory notice has served its purpose, and its application is no longer required because the claim has already been substantiated. Dingess/Hartman, 19 Vet. App. 473, 490-91 (2006). Here, the Veteran is exercising his right to appeal the initial staged ratings assigned. A May 2007 statement of the case (SOC) properly provided the Veteran with notice of the criteria for rating heart disabilities, and further notice on the downstream issue of an initial increased rating, including of what the evidence showed, and why the current rating was assigned. The Veteran has had opportunity to respond. He is not prejudiced by this process. Notably, he does not allege that notice in this case was less than adequate or that he has been prejudiced by any notice deficiency. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's service treatment records (STRs) and pertinent medical records (including VA and private) has been completed. The Veteran has not identified any pertinent, outstanding records that could be obtained to substantiate his claim. The Board is also unaware of any such records. The Board most recently remanded the Veteran's increased rating claim in April 2012 for additional action, including obtaining outstanding treatment records and affording him a VA examination to ascertain the current nature and severity of his service-connected heart disability. Outstanding VA treatment records were obtained and associated with VVA in April 2012. As will be discussed in more detail below, the Veteran was afforded a VA examination in May 2012. The report of this examination reflects that the Veteran's records were reviewed; the report contains the requested information. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required. D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). II. Analysis 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; 38 C.F.R. § 4.1. The basis of disability evaluations 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. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A 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 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's service-connected heart disability has been rated 30 percent disabling from October 1, 2006, to June 24, 2007, and 60 percent disabling from June 25, 2007, under 38 C.F.R. § 4.104, Diagnostic Codes 7017 (coronary bypass surgery) and 7005 (coronary artery disease). The rating criteria under either Diagnostic Code 7005 or Diagnostic Code 7005 are the same for a 30 percent rating, a 60 percent rating and a 100 percent rating. The criteria for a 30 percent rating are a workload of greater than 5 METs but not greater than 7 METs with dyspnea, fatigue, angina, dizziness, or syncope; or where there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The criteria for a 60 percent rating are 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 with dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Status post coronary bypass surgery resulting in 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, is rated 100 percent disabling. 38 C.F.R. § 4.104, Diagnostic Codes 7005, 7017. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. October 1, 2006, to June 24, 2007 STRs dated from 1985 to 2005 show that the Veteran was seen for chest pain with exertion. He had borderline hypertension that did not require medication. On examination at separation, stress testing and chest X-ray studies were within normal limits. Following service, the Veteran underwent cardiac catheterization in April 2006 and CABG in June 2006. No findings of congestive heart failure were made in the report of an August 2006 VA heart examination. That examination report also made reference to the findings of an April 2006 echocardiogram that, in pertinent part, indicated that the Veteran had an estimated left ventricular ejection fraction of 55 percent. A September 2006 VA stress test shows that the Veteran achieved 7.20 METs. He developed shortness of breath during the test which resolved with rest. A November 2006 VA outpatient treatment record notes that the Veteran denied exertional chest pain. He reported that he had gone back to work as a recruiter at a staffing agency. A May 2007 VA outpatient treatment record notes that the Veteran was doing well from a cardiac perspective. He denied chest pain. He reported developing minimal shortness of breath on exertion. He was riding a bike for exercise. From October 1, 2006 through June 24, 2007, the medical evidence of record does not show that the Veteran had a workload of any worse than 5 to 7 METs before resulting in dyspnea. In order to warrant the next higher (60 percent) rating for the period at issue, the medical evidence must show 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 with dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. As noted above, this was not the case. The Veteran had few complaints, was exercising by riding a bike, and was working at a sedentary job during this period. Therefore, a rating in excess of 30 percent is not warranted. As the preponderance of the evidence is against a higher schedular rating at anytime during the period at issue, the benefit-of-the-doubt standard of proof does not apply. See Fenderson, supra; 38 U.S.C.A. § 5107. From June 25, 2007 A June 25, 2007, VA echocardiography report notes an estimated left ventricular ejection fraction of 50 percent. VA treatment records dated from 2008 to 2011 note that the Veteran denied chest pain, dizziness and shortness of breath. He was working full time. In March 2010 he reported that he walked and rode a bike for 30 to 60 minutes about three times a week with no symptoms. His blood pressure and heart rate were well controlled. A July 2011 VA examination report notes that the examiner reviewed the claims file and examined the Veteran. The Veteran reported that he may have a slight "tightness" in chest and some shortness of breath on exertion, as well as occasional palpitations and lightheadedness. He denied syncope or peripheral edema. A July 2011 echocardiogram showed left ventricular ejection fraction of 60 to 65 percent. There was no evidence of congestive heart failure. The examiner did not estimate the Veteran's METs after she determined that exercise testing could not be conducted due to the co-morbidity of back pain. The examiner did complete an addendum in August 2011 in which she estimated the Veteran's METs at 6 to 8 based upon the Veteran's physical activities in that he "[t]ries to walk one to one-and-a-half miles [a] couple times a week, or rides a bike for three to four miles. In winter, [he] uses [a] stationary bike for twenty minutes. He does perform yard work." She opined that the Veteran's heart disability had no effect on his sedentary job. A May 2012 VA examination report shows that the VA examiner reviewed the claims file and examined the Veteran. The examiner noted that the Veteran has not had congestive heart failure. July 2011 echocardiogram revealed left ventricular ejection fraction of 60 to 65 percent. Interview-based METs test revealed a current METs level of 5 to 7. The Veteran was able to do heavy yard work if he worked at his own pace and took breaks as needed. Sustained physically demanding work would not be recommended. The METs level limitation was not due solely to heart disability, but also age, obesity and other physical conditions. The examiner opined that the Veteran's heart disability had no effect on his sedentary job. Physically demanding work, however, was not recommended. A November 2012 VA echocardiogram revealed left ventricular ejection fraction of 55 to 60 percent. The examiner added the left ventricular ejection fraction represents the proportion of blood that the left ventricle ejects with each beat, and therefore more accurately represents the function of the heart muscle as distinct from the Veteran's co-morbid conditions/non-cardiac disabilities than does the METs, which describes the exercise capacity of the entire organism, and therefore influenced by co-morbid conditions. The examiner noted that the Veteran did house work and yard work, and walked or rode his bike three times a week. He opined that the Veteran's heart disability had no effect on his full-time sedentary job. Physically demanding work (such as construction work), however, was not recommended. Concerning the period beginning June 25, 2007, the evidence of record does not demonstrate chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. As noted above, the left ventricular ejection fraction has been well above 30 percent for the period of the appeal. Thus, for the period beginning June 25, 2007, the next higher schedular rating of 100 percent must be denied. In deciding this claim, the Board acknowledges that the Veteran is competent to report symptoms of his heart disorder disability such as fatigue or shortness of breath. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). Additionally, he is credible in his reports of symptoms and their effect on his activities. He is not however competent to identify a specific level of disability of his disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected heart disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which this disability is evaluated. The Board finds these records to be the only competent and probative evidence of record, and therefore is accorded greater weight than the Veteran's subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). As the preponderance of the evidence is against a higher schedular rating at anytime during the period at issue, the benefit-of-the-doubt standard of proof does not apply. See Fenderson, supra; 38 U.S.C.A. § 5107. Other Considerations The Board has also considered whether the record raises the matter of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology (including shortness of breath with exercise, diminished workload measured in METs and impaired left ventricular dysfunction) of his heart disability. Evaluations in excess of the staged ratings assigned are provided for certain manifestations of the service-connected disability at issue, but the medical evidence reflects that those manifestations are not present in this case. The competent evidence does not show that the disability causes marked interference with employment, requires frequent hospitalizations, or otherwise produce impairment unrecognized by the schedule. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Finally, the Court has held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected heart disability prevents him from obtaining and maintaining gainful employment, nor has he contended otherwise. In fact, the evidence of record shows that the Veteran is employed. Thus, at this point, there is no cogent evidence of unemployability due solely to this service-connected disability, and the issue of entitlement to a TDIU need not be addressed further. ORDER An initial disability rating for CAD, status-post CABG surgery, with hypertension, evaluated as 30 percent disabling from October 1, 2006 to June 24, 2007, and as 60 percent disabling from June 25, 2007, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs