Citation Nr: 1338348 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 04-23 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a disability rating higher than 30 percent for coronary artery disease. 2. Entitlement to a total disability rating for compensation based on individual unemployability prior to February 2, 2010. 3. Entitlement to a temporary total disability rating for convalescence under 38 C.F.R. § 4.30 from August 1, 2012. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). The Veteran, who is the appellant, served on active duty from September 1948 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in August 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge in January 2009. A transcript of the hearing is of record. The Board remanded the case to the RO in August 2009 and August 2013 for further development. The claims for a total disability rating for compensation based on individual unemployability prior to February 2, 2010, and the claim for a temporary total disability rating for convalescence under 38 C.F.R. § 4.30 from August 1, 2012, are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Prior to April 5, 2012, coronary artery disease did not result in: an episode of acute congestive heart failure during any prior year; or a workload of 5 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent; or a myocardial infarction. 2. The Veteran suffered a myocardial infarction on April 5, 2012. 3. For the period from August 1, 2012, coronary artery disease did not result in: an episode of acute congestive heart failure during any prior year; or a workload of 5 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent; or a myocardial infarction. CONCLUSIONS OF LAW 1. Prior to April 5, 2012, the criteria for a rating higher than 30 percent for coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Codes 7005, 7006 (2013). 2. From April 5, 2012 to July 31, 2012, the criteria for a 100 percent rating for coronary artery disease have been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Codes 7005, 7006 (2013). 3. From August 1, 2012, the criteria for a rating higher than 30 percent for coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Codes 7005, 7006 (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. On a claim for increase, the VCAA requires generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). On the claim for increase, the RO provided pre- and post adjudication VCAA notice by letters in September 2005 and in August 2013. As for the content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484 86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (increase in severity of the disability and the effect that worsening has on employment.). To the extent that the VCAA notice came after the initial adjudication, the procedural defect was cured as after the RO provided content-complying VCAA notice, the claim was readjudicated as evidenced by the supplemental statement of the case in September 2013. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service records, VA records, and private medical records. The Veteran was afforded VA examinations to evaluate the disability. As the reports of the VA examinations are based on the Veteran's history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no evidence of a material change in the disability, a reexamination is not warranted. 38 C.F.R. § 3.327. As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Applicable Law for Rating Coronary Artery Disease A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Rating Criteria Coronary artery disease is rated 30 percent under 38 C.F.R. § 4.104, Diagnostic Code 7005. Under Diagnostic Code 7005, the criteria for the next higher rating, 60 percent, 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. As there is evidence of a myocardial infarction in April 2012, during the period of appeal, the criteria for rating a myocardial infarction under Diagnostic Code 7006 is applicable. Under Diagnostic Code 7006, myocardial infarction warrants a 100 percent rating during and for three months following the myocardial infarction, documented by laboratory tests. Under Diagnostic Code 7006, the criteria for a 60 percent rating are the same criteria as under Diagnostic Code 7006. Evidence VA records show that in May 2004 the Veteran stated that he did not have any rest or exertional chest pain or symptoms of congestive failure or palpitations, lightheadedness or syncope. In July 2005 on VA examination, the Veteran had no cardiac complaints. An EKG had shown a silent myocardial infarction, but the Veteran was not aware of it. The VA examiner stated that calculation of METs by estimation was not possible due to the Veteran's physical condition unrelated to coronary artery disease that prevented exercise. The pertinent findings were regular cardiac rhythm. There was no cyanosis, clubbing, swelling, or effusion in the extremities. The VA examiner noted that an echocardiogram showed normal regional wall motion and a left ventricular ejection fraction of 60 to 65 percent. The diagnosis was coronary artery disease with preserved left ventricular ejection fraction and resolved congestive heart failure. In November 2005 on VA examination, the Veteran stated that he last worked in 1987, when he stopped working after twelve years as a railroad mechanic. He complained of sharp pains in the left arm, starting from the anterior chest and shortness of breath. He denied nausea, vomiting, diaphoresis, but he had dizziness once in a while. He stated that he had not been hospitalized for chest pain. He stated that he was diagnosed with coronary artery disease in 2003. He stated that he had no angina, dyspnea, fatigue, dizziness, or syncope. On examination there was no evidence of congestive heart failure. Cardiac rhythm was regular. An EKG showed normal sinus rhythm and a septal infarct. The diagnosis was coronary artery disease with preserved left ventricular function. In May 2007 on VA examination, the Veteran described episodes of chest pain. He denied a myocardial infarction or stroke or episode of syncope. He stated that he currently only walked around the house. He stated he had been retired since 1987. He stated that he had not been hospitalized or had a period of incapacitation due his heart condition in the past 12 months. He stated that his heart condition had no effect on activities such as showering, dressing, toileting or grooming. On cardiovascular evaluation cardiac rate and rhythm were regular. In June 2007, a myocardial perfusion study showed a normal left ventricle and normal left ventricular systolic function. The calculated ejection fraction was 58 percent. METS could not be calculated, because of the Veteran's lower extremities. The diagnosis was coronary artery disease, stable. In April 2010 on VA examination, the diagnosis was coronary artery disease with no effects on the usual daily activities. Records from the William Beaumont Army Medical Center show that on April 5, 2012, the Veteran was admitted to the emergency room for evaluation of chest pain. During hospitalization cardiac catheterization showed a 70 to 80 percent narrowing of the left anterior descending artery and total occlusion of dominant circumflex vessel. A stent was placed in the left anterior descending artery. The Veteran was hospitalized for six days and the diagnosis was non-ST segment elevation myocardial infarction. In August 2012, an echocardiogram showed normal left ventricular size and function, an ejection fraction of 65 percent, and no regional wall abnormality. In August 2013, on VA examination, the Veteran denied a history of chronic heart failure, chest pain, dyspnea on exertion, paroxysmal nocturnal dyspnea, or orthopnea. The VA examiner noted that the Veteran had an echocardiogram that was essentially normal. The examiner stated that the Veteran's heart condition included ischemic heart disease diagnosed as non-ST segment elevation myocardial infarction due to severe atherosclerotic coronary artery disease. The VA examiner stated that the Veteran did not have congestive heart failure or cardiac arrhythmia. Except for hospitalization in April 2012 the Veteran had no other hospitalizations for heart treatment. Diagnostic testing showed no evidence of cardiac hypertrophy or dilatation. METs testing (exercise stress test), most recently performed in 2008 showed normal results. During the examination, the VA examiner estimated METs at higher than 5 and not higher than 7 METs. The VA examiner stated that there was no clinical evidence of congestive failure. Analysis A Rating prior to April 5, 2012 Prior to April 5, 2012, on VA examination in November 2005 there was no evidence of congestive heart failure. The VA examiners reported that METs testing was not feasible due to other health problems unrelated to the service-connected coronary heart disease. In July 2005 on VA examination, the Veteran was asymptomatic. In May 2007, it was noted that the Veteran's heart condition did not affect activities of daily living such as showering, dressing, or grooming. In July 2005, the left ventricular ejection fraction was 60 to 65 percent. In May 2007, the ejection fraction was 58 percent. In sum, the findings prior to April 5, 2012, do not show one episode of acute congestive heart failure in any past year, or a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or a left ventricular dysfunction with an ejection fraction of 30 to 50 percent, or evidence of a myocardial infarction prior to April 5, 2012. As the preponderance of the evidence is against the claim that coronary artery disease met the schedular rating criteria for a disability rating higher than 30 percent during any part of the period before April 5, 2012, under either Diagnostic Code 7005 or 7006, the benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b). A Rating from April 5, 2012 to July 31, 2012 The evidence shows that the Veteran suffered a myocardial infarction on April 5, 2012. Under Diagnostic Code 7006, a 100 percent disability rating is assignable following myocardial infarction for the period from April 5, 2012, to the end of the third month or to July 31, 2012. A Rating from August 1, 2012 In August 2013, the VA examiner estimated METs testings with dyspnea, fatigue, and dizziness as higher than 5, but not higher than 7 METs. There is no evidence of any episode of acute congestive heart failure during a previous year after August 1, 2012. In August 2013, the VA examiner stated that there was no clinical evidence of congestive heart failure. In August 2012 and August 2013, the ejection fraction was 65 percent. In sum, the findings from April 5, 2012, and currently do not show one episode of acute congestive heart failure in any year, or a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or a left ventricular dysfunction with an ejection fraction of 30 to 50 percent, or evidence of a myocardial infarction since April 5, 2012. As the preponderance of the evidence is against the claim that coronary artery disease met the schedular rating criteria for a disability rating higher than 30 percent during any part of the period from April 5, 2012, under either Diagnostic Code 7005 or 7006, the benefit-of-the-doubt standard does not apply. 38 U.S.C.A. § 5107(b). Extraschedular Consideration Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate. There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular ratings are, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria under Diagnostic Codes 7007 and 7006 reasonably describe the disability levels and the Veteran's cardiac symptoms are encompassed by the Rating Schedule. Therefore referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). A Total Disability Rating for Compensation based on Individual Unemployability The claim for a total rating is addressed in the REMAND. ORDER Before April 5, 2012, a rating higher than 30 percent for coronary artery disease is denied. From April 5, 2012. to July 31, 2012, a 100 percent rating for coronary artery disease is granted. From August 1, 2012, a rating higher than 30 percent for coronary artery disease is denied. REMAND While on appeal period, in a rating decision in June 2010, the RO granted a total disability rating for compensation based on individual unemployability, effective from February 2, 2010, the date of receipt of the application. As the schedular percentage standards for a total rating under 38 C.F.R. § 4.16(a) were met since November 1, 2006, and as a claim for increase has been pending since May 2005, and as the record reasonably raises the claim for a total rating before February 2, 2010, the claim for a total rating is not a separate claim, but a part of the claim for increase for coronary artery disease on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the claim for a total disability rating is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). The record raises the claim for a period of convalescence under 38 C.F.R. § 4.30 for after July 31, 2012. A temporary total disability rating for convalescence under 38 C.F.R. § 4.30 is part of the claim for increase on appeal. Accordingly, the case is REMANDED for the following action: 1. Ensure VCAA compliance with the duty to notify and the duty to assist on the claims for a total disability rating for compensation based on individual unemployability and for a temporary total disability rating for convalescence under 38 C.F.R. § 4.30. 2. After any development deemed necessary, adjudicate the claims for: a). A total disability rating for compensation based on individual unemployability under 38 C.F.R. § 4.16(a) before February 2, 2010; and , b). A temporary total disability rating for convalescence under 38 C.F.R. § 4.30 from August 1, 2012. If a benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). ___________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs