Citation Nr: 1404792 Decision Date: 02/03/14 Archive Date: 02/14/14 DOCKET NO. 10-17 657 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a disability evaluation in excess of 30 percent for service-connected coronary artery disease with myocardial infarction, status post coronary artery bypass graft and aortic valve replacement from March 6, 2008 to September 22, 2010, for accrued benefit and substitution purposes. ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to December 1945. The Veteran was a prisoner of war of the German Government for over 30 days. The Veteran died in October 2011, and the appellant is the Veteran's son who paid his final expenses. At the time of the Veteran's death, his claim for an increased disability rating for coronary artery disease was still pending. The appellant filed a claim for accrued benefits, as well as a Motion for Substitution. Substitution was granted pursuant to 38 U.S.C.A. § 5121A in July 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2009 and October 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh and Philadelphia, Pennsylvania. Jurisdiction is currently with the RO in Pittsburgh, Pennsylvania. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT Prior to September 2010, the Veteran's 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. CONCLUSION OF LAW The criteria for entitlement to a disability evaluation in excess of 30 percent for service-connected coronary artery disease with myocardial infarction, status post coronary artery bypass graft and aortic valve replacement from March 6, 2008 to September 22, 2010, for accrued benefit and substitution purposes 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). REASONS AND BASES FOR FINDING AND CONCLUSION Accrued Benefits and Substitution The appellant is seeking entitlement to a disability evaluation in excess of 30 percent for the Veteran's service-connected coronary artery disease from March 6, 2008 to September 22, 2010 for accrued benefit and substitution purposes. Accrued benefits are benefits to which a veteran was entitled at his death, based on evidence on file at the date of death, and due and unpaid, to be paid to survivors as provided by law. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. § 3.1000 (2013). For a claimant to prevail on an accrued benefits claim, the record must show that (i) the appellant has standing to file a claim for accrued benefits, (ii) the veteran had a claim pending at the time of death, (iii) the veteran would have prevailed on the claim if he had not died; and (iv) the claim for accrued benefits was filed within one year of the veteran's death. 38 U.S.C.A. §§ 5121, 5101(a) (West 2002); 38 C.F.R. § 3.1000 (2012); Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). The substance of the survivor's claim is purely derivative from any benefit to which the veteran might have been entitled at his death; that is, the survivor cannot receive any benefit that the veteran could not have received. Zevalkink v. Brown, 6 Vet. App. 483, 489-90 (1994). In considering the appellant's claim for accrued benefits, generally, only evidence contained in the claims file at the time of the veteran's death is evaluated. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. However, in Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993), the Court held that service department and certain VA medical records are considered as being constructively of record at the date of death although they may not physically be in the claims file until after that date. The pertinent provisions refer to service department records, reports of VA hospitalizations, reports of treatment by VA medical centers, reports of treatment authorized by the VA, and reports of autopsy made by VA on date of death. The Veteran died in October 2011. At the time of his death, an increased rating claim for coronary artery disease was pending. The appellant, who is the Veteran's son and who paid the Veteran's final expenses, filed a claim for accrued benefits. As the appellant has standing to file a claim for accrued benefits, the Veteran had a claim pending at the time of death, and the claim for accrued benefits was filed within one year of the Veteran's death, the only issue is whether the Veteran would have prevailed on the claim if he had not died. The Board also notes that in promulgating the Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), Congress created a new 38 U.S.C.A. § 5121A allowing substitution in the case of the death of a claimant who, as the Veteran in the instant case, dies on or after October 10, 2008. A person eligible for this substitution includes a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a). If a claimant dies while a claim for any benefit under a law administered by VA, or an appeal of a decision with respect to a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under 38 U.S.C.A. § 5121(a) may, not later than one year after the date of the death of the claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. There is an important distinction between the law governing a claim for accrued benefits upon the death of a beneficiary and claims regarding substitutions of claimants in the case of death of a claimant. U.S.C.A. §§ 5121, 5121A. When adjudicating the accrued benefits claims, only the evidence of record at the time of death may be considered as the basis for a determination on the merits of the claim, as noted. However, when a properly qualified substitute claimant continues the pending claim in the footsteps of the Veteran after death, additional development of the record may be undertaken if deemed appropriate or necessary to adequately adjudicate the merits of the claim. A substitute claimant may submit additional evidence in support of the claim. Also, VA is responsible for obtaining any additional evidence required and addressing notice or due process defects in the same manner as if the original claimant were still alive. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, it remains open for the submission and development of any pertinent additional evidence for substituted claimants. Thus, it is to the appellants' benefit to have the claim adjudicated as a substitute claimant pursuant to the newly enacted 38 U.S.C.A. § 5121A ; therefore, any eligible survivor submitting a claim for accrued benefits will be considered as requesting to substitute and may be able to submit additional evidence in support of the claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R., Part 4 (2013). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then-current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation 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. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The Veteran was granted entitlement to service connection for coronary artery disease in a July 2009 rating decision and an initial 30 percent disability evaluation under 38 C.F.R. § 4.104, Diagnostic Code 7005 was assigned, effective March 6, 2008. 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. A 100 percent rating is warranted for chronic congestive heart failure, or when a 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. 38 C.F.R. § 4.104, Diagnostic Code 7005. Additionally, under Diagnostic Code 7006, myocardial infarction warrants a 100 percent rating during and for three months following the myocardial infarction, documented by laboratory tests. Otherwise, this diagnostic code has the same criteria as Diagnostic Code 7005. As noted above, the Veteran appealed his initial 30 percent rating for coronary artery disease. After his death in October 2011, the appellant continued to pursue the Veteran's increased rating claim for accrued benefit and substitution purposes. In an October 2012 decision, the RO increased the Veteran's disability rating to 100 percent, the maximum schedular rating, effective September 22, 2010, based on private medical records showing that the Veteran suffered from congestive heart failure in September 2010, January 2011, and April 2011, as well as a myocardial infarctions in December 2010 and March 2011. This evidence also showed ejection fractures of less than 30 percent on several occasions and a VA examination in September 2011 estimated the Veteran's METS as 1 to 3. The appellant has continued to pursue a claim for an increased rating prior to September 22, 2010, but has not articulated why he believes an increased rating is warranted. The Board has reviewed the extensive evidence of record, including VA and private treatment records and VA medical examination reports and there is no competent evidence that during the period from March 2008 until September 2010, the Veteran's coronary artery disease resulted 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. On an echocardiogram at a private facility in September 2008, the ejection fraction of the left ventricle was estimated at 50 to 55 percent. A May 2009 VA examination did not include METs. In a December 2011 letter, K.H., who helped care for the Veteran prior to his death, testified regarding the Veteran's overall poor health and his difficulty performing activities of daily living. She alleged that the Veteran was seen in the emergency room at Armstrong County Memorial Hospital and Butler Memorial Hospital in March 2009, May 2009, December 2009, and January 2010 for problems with his coronary artery disease and congestive heart failure. However, although extensive medical records from these institutions have been obtained, no treatment records for the reported dates are available. Furthermore, K.H. stated in her letter that she did not meet the Veteran until May 2010, so she was presumably not personally present on any of the above dates the Veteran allegedly received treatment and it is unclear from her statement who or what is the source of her information regarding the Veteran's medical history. In the absence of corroborating medical records or additional evidence concerning the source of K.H.'s knowledge of the Veteran's treatment which would allow the Board to evaluate its credibility, the Board finds the probative value of K.H.'s testimony is limited concerning the issue of whether the Veteran met the schedular criteria for a higher disability rating between March 2008 and September 2010 and is accordingly afforded little weight. The Board does acknowledge that K.H. is competent to testify regarding her personal observations that the Veteran was overall in poor health during the period she knew him and that he struggled with activities of daily living; however, such information is too vague to support a higher disability rating under Diagnostic Code 7005. The Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2013). The criterion for such an award 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 as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. The Veteran's reported symptoms of his coronary artery disease are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. For all the above reasons, entitlement to an initial disability evaluation in excess of 30 percent for the Veteran's coronary artery disease prior to September 22, 2010 must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it 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 C.F.R. § 3.159 (2013). Here, both the Veteran and the appellant were provided with the relevant notice and information on how to substantiate their claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Neither has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the severity of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). ORDER Entitlement to a disability evaluation in excess of 30 percent for service-connected coronary artery disease with myocardial infarction, status post coronary artery bypass graft and aortic valve replacement from March 6, 2008 to September 22, 2010, for accrued benefit and substitution purposes, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs