Citation Nr: 1338429 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-30 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for ischemic heart disease. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for residuals of stroke. REPRESENTATION Appellant represented by: Andrew L. Wener, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to April 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from October 2009 and February 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The RO granted a total disability rating for compensation based upon individual unemployability (TDIU) in November 2011. The Veteran and his spouse presented testimony at a Board hearing in July 2012, and a transcript of the hearing is associated with his claims folder. The issues of service connection for hypertension and for residuals of stroke are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The service-connected ischemic heart disease results in impairment more nearly approximating the criteria for a 60 percent rating. CONCLUSION OF LAW The criteria for a disability rating of 60 percent for ischemic heart disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in May 2010. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; examined the Veteran for ischemic heart disease in July 2010 and September 2011; and afforded the Veteran the opportunity to give testimony before the Board. The information including the examination reports of record contain adequate information to apply the rating criteria to the Veteran's disability. Therefore it is adequate. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. All evidence of record has been reviewed. Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. The Veteran appeals the RO's assignment of an initial 30 percent rating for his service-connected ischemic heart disease, which is rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. Under Diagnostic Code 7005, a 100 percent rating is warranted when there is chronic congestive heart failure, or workload of 3 METs or less result in dyspenea. Fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. A 60 percent rating is warranted if there is more than one episode of acute congestive heart failure in the past year; or if a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 30 percent rating is warranted if a workload of greater than 5 METs but no greater than 7 METs results in dyspnea, fatigue, angina, dizziness or syncope; or if there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. The evidence of record does not show any episodes of acute congestive heart failure during the rating period, which began in April 2010, and none are claimed. On VA examination in July 2010, it was reported that the Veteran's estimated METS was 3-4. His left ventricular ejection fraction was 62 percent by computer. A February 2011 addendum to that report indicates that the Veteran's largest factor limiting his MET level was his lower extremity peripheral neuropathy. He was not medically fit enough to estimate the METS level reflecting the current heart capacity and it was not possible to state an estimated METS level for his heart only without resorting to mere speculation. In the Veteran's case, his ejection fraction was a more accurate indicator of his heart function than his estimated MET level. On VA examination in September 2011, the Veteran reported that there had been no change in his ischemic heart disease since the July 2010 VA examination. He was not able to perform a treadmill stress test due to hip and knee arthritis. October 2010 myocardial imaging revealed a left ventricular ejection fraction of 62 percent by computer. It is arguable that the 3-4 METs reported on VA examination may not be due to the service-connected heart disability alone. The examiner has indicated that much of the impairment is due to causes other than the heart disability. However, even acknowledging the examiner's opinion in this regard, the Board believes that it is arguable that application of 38 C.F.R. § 4.7 in this case leads to a finding that the criteria for a 60 percent rating is more nearly approximated. Under these circumstances, the Board believes all reasonable doubt should be resolved in the Veteran's favor. Accordingly, the Board finds that the criteria for a 60 percent rating have been met. However, the evidence does not persuasively show that the criteria for the next higher rating of 100 percent. As noted above, there is no evidence of chronic congestive heart failure. The reported ejection fractions have all been well above 30 percent. Given the examiner's comment about factors other than the heart disability being responsible for much of the impairment indicated by the reported METs, the Board declines to find that the criteria for a 100 percent schedular rating have been met. Extra Schedular and Rice Considerations The above determination is based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation 38 C.F.R. § 3.321(b)(1) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disability reasonably describe his disability level and symptomatology. The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Lastly, the Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU has already been granted for the entirety of the rating period at issue, in a November 2011 rating decision. Accordingly, the Board concludes that further action is not necessary with regard to a TDIU at this time. ORDER A disability rating of 60 percent (but no higher) for ischemic heart disease is warranted. The appeal is granted to this extent, subject to laws and regulations governing payment of VA monetary benefits. REMAND The Veteran also seeks service connection for hypertension and residuals of stroke. A December 2005 private medical record from Eric W. Muir, M.D. shows that blood pressure medication had been prescribed in the past for the Veteran and was re-prescribed at that time. There was a VA examination July 2009 which resulted in a medical opinion that the Veteran's hypertension was a complication of his diabetes mellitus because it was Agent Orange related. The examiner also opined that the Veteran's hypertension and strokes were at least as likely as not caused as a result of Agent Orange exposure in Vietnam. The examiner's rationale was that data from a VA initiative in March 2002 revealed an 11.2 percent frequency of hypertension for Veterans who served in Vietnam. The claims folder had no relevant post-service treatment records in it. A VA examination in September 2009 resulted in a diagnosis of essential hypertension which was not caused by diabetes mellitus, but which was aggravated by it, with the reasoning being that there was medical literature indicating that there is a relationship between diabetes mellitus and hypertension. However, the examiner stated that he could not determine the baseline manifestations and increased manifestations of the Veteran's hypertension due to aggravation without resorting to speculation. The claims folder again had no relevant post-service medical records in it. The examiner indicated in reference to the prior examiner's opinion that the Veteran's hypertension was related to Agent Orange exposure, that she was not aware that hypertension had been listed among the conditions acknowledged by VA to be related to Agent Orange exposure. In December 2009, Dr. Muir stated that the effects of the Veteran's diabetes mellitus had made it more difficult to keep his blood pressure under control in the past couple of years. The VA examination reports which are of record do not include detailed reasons for the opinions. In light of the above, the Board finds that another VA examination is necessary, as indicated below, after further development for records of hypertension treatment since service discharge is completed. 1. Make arrangements to obtain all available medical records of treatment which the Veteran received for hypertension and stroke prior to and following the diagnosis of diabetes mellitus in January 2007, which are not already of record. This should include all medical records of treatment the Veteran received from Dr. Muir, The Jackson Clinic, VA, and any other health care providers since service discharge. 2. After the above record development is completed, the Veteran should be scheduled for a VA examination by an appropriate medical doctor with regard to his claims for service connection for hypertension and residuals of stroke. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should respond to the following: a) With regard to the current hypertension and any current stroke residuals, is it at least as likely as not (a 50% or higher degree of probability) that such disorder is causally related to in-service Agent Orange exposure? b) With regard to the current hypertension and any current stroke residuals, is it at least as likely as not (a 50% or higher degree of probability) that such disorder(s) is/are proximately due to or caused by the service-connected diabetes mellitus? c) With regard to the current hypertension and any current stroke residuals, is it at least as likely as not (a 50% or higher degree of probability) that such disorder(s) has/have been aggravated by the service-connected diabetes mellitus? d) Was the Veteran's stroke at least as likely as not (a probability of at least 50 percent) caused or aggravated by his hypertension? The examiner should furnish reasons for the opinions. Detailed reasons for why the examiner feels the Veteran's hypertension and/or stroke residuals are or are not related to in-service Agent Orange exposure should be provided. A comparison of the baseline severity of the Veteran's hypertension prior to his diabetes mellitus with that shown since should be considered in the reasons why the examiner feels the Veteran's hypertension was or was not aggravated by his diabetes mellitus. 3. Thereafter, the RO should review the expanded record and decide the claims for service connection for hypertension and residuals of stroke. If either claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for appellate review. The appellant 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). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs