Citation Nr: 1514851 Decision Date: 04/07/15 Archive Date: 04/21/15 DOCKET NO. 12-17 676A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 60 percent prior to June 24, 2010 for coronary artery disease, post myocardial infarction, post angioplasty and stent placement. 2. Entitlement to a rating in excess of 20 percent for type 2 diabetes mellitus with erectile dysfunction (ED). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to June 24, 2010. REPRESENTATION Appellant represented by: Kenneth L. LaVan, Attorney at Law ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2009 and December 2010 rating decisions of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). The July 2009 rating decision denied entitlement to a TDIU. The December 2010 rating decision, in pertinent part, increased the rating for the Veteran's service-connected heart disability to 100 percent effective June 24, 2010 and continued a 20 percent rating for the service-connected type 2 diabetes mellitus with ED. While the award of a 100 percent rating from June 24, 2010 renders moot the question of entitlement to an increased rating from that date, the issue of a rating in excess of 60 percent for the period July 14, 2009 (one year before the increase rating claim was filed) to June 24, 2010 (effective date of 100 percent rating) remains before the Board; and likewise with the issue of a TDIU. See AB v. Brown, 6 Vet. App. 35 (1993). On the Veteran's July 2012 VA Form 9, he requested a Board hearing by videoconference; however, in a statement dated January 23, 2015, his attorney withdrew such request. The January 23, 2015 written statement also included a request to hold the record open for 60 days from the date of the scheduled hearing (January 28, 2015), to afford the opportunity for the Veteran's attorney to submit a letter brief along with additional evidence. However, three days later, on January 26, 2015, the attorney's office contacted the RO and requested that the appeal be sent forward for a decision. The Board construes this later statement as expressing an intent to withdraw of the motion for extension of time for the submission of additional evidence. Accordingly the Board will consider the claim at this time. The issues of entitlement to a rating in excess of 20 percent for type 2 diabetes mellitus with ED and a TDIU prior to June 24, 2010 are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Prior to June 24, 2010, the Veteran's service-connected heart disability had not been shown to be manifested by chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope; nor left ventricular dysfunction; or with an ejection fraction of less than 30 percent. CONCLUSION OF LAW Prior to June 24, 2010, the criteria for a schedular rating in excess of 60 percent for coronary artery disease, post myocardial infarction, post angioplasty and stent placement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Codes (Codes) 7011, 7005 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is 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). The Veteran received such notice by letter in July 2010. The Veteran's pertinent treatment records have been secured. Historically, the Veteran filed the claim for an increased rating for his service-connected heart disability on July 14, 2010, and the current effective date of the award of 100 percent is June 24, 2010. Thus, the Board has closely reviewed VA outpatient treatment records for the time period prior to June 24, 2010, including a VA Medical Center (VAMC) pre-anesthesia assessment note, along with the June 25, 2010 VAMC discharge summary report (for cardiac procedure), in addition to the other evidence of record. A VA examination was developed in connection with this claim in September 2010. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds these medical records adequate for rating the Veteran's service-connected heart disability. The evidence relied on for the period under consideration in this case contain sufficient specific clinical findings and informed discussion of the history and features of the Veteran's service-connected heart disability to constitute probative medical evidence adequate for rating purposes. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist in this matter is met. Legal Criteria, Factual Background and Analysis Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In evaluating a disability, the Board considers the disability in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disability. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that it has reviewed all of the evidence in the record, 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). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims being decided. On July 14, 2010, the Veteran filed a claim for an increased rating for his service-connected heart disability (coronary artery disease, post myocardial infarction, post angioplasty and stent placement). At the time his heart disability was rated 60 percent under Code 7006-7005. In a December 2010 rating decision, the RO increased the disability rating to 100 percent, effective June 24, 2010, prior to the date of the claim for increase, based on the fact that on that date the Veteran had a surgical procedure to implant an automatic cardioverter-defibrillator (AICD). Thus, the only question remaining for the Board is whether it was "factually ascertainable that an increase in [his] disability had occurred" at any time earlier in the one-year period prior to VA's receipt of his claim. 38 C.F.R. § 3.400( o)(2). In other words, whether it is factually ascertainable that an increase in disability occurred between July 14, 2009 and June 24, 2010. The schedular criteria for rating heart disease provide for ratings of 100 percent where there is valvular heart disease (under Code 7000); endocarditis (under Code 7001); pericarditis (under Code 7002); pericardial adhesions (under Code 7003); syphilitic heart disease (under Code 7004); arteriosclerotic heart disease (under Code 7005); myocardial infarction (under Code 7006); hypertensive heart disease (under Code 7007); sustained ventricular arrhythmias (under Code 7011); atrioventricular block (under Code 7015); heart valve replacement (under Code 7016); coronary bypass surgery (under Code 7017); implantable cardiac pacemakers (under Code 7018); cardiac transplantation (under Code 7019); or cardiomyopathy (under Code 7020). As the heart disabilities under Codes 7005, 7006 and 7011 are shown to be associated with the Veteran's service-connected heart disability, the others are not (the criteria do not apply), and an increased schedular rating under any such alternate rating criteria is not warranted. Under Code 7005 a 60 percent rating is warranted where there was more than one episode of acute congestive heart failure in the past year, or when workload of greater than 3 METs [metabolic equivalents (multiples of resting oxygen uptake)] but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted where there is chronic congestive heart failure, or when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or with left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. Where there has been a myocardial infarction, a cardiac disability may alternatively be rated under Code 7006, which provides for ratings identical to those under Code 7005, with the exception that the disability is to be rated 100 percent during and for three months following myocardial infarction, documented by laboratory tests. 38 C.F.R. § 4.104 Where there is sustained ventricular arrhythmias, a cardiac disability may alternatively be rated under Code 7011, which provides for ratings identical to those under Code 7005, with the exception that a 100 percent rating is warranted for an indefinite period from the date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an AICD in place. 38 C.F.R. § 4.104. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters 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. In this case, the Veteran was seen at VA primary care outpatient clinic in September 2009 for evaluation of chronic medical problems. A cardiac examination revealed regular rhythm and rate and no gallop. Electrocardiogram (ECG/EKG) results from September 2009 showed sinus bradycardia, possible right ventricular hypertrophy, inferior infarct (cited on or before August 2002), and anterolateral infarct (cited on or before May 2002); an abnormal ECG was shown (when compared with ECG of April 2008). There was nonspecific T-wave abnormality no longer evident in inferior leads and improved in anterolateral leads. The diagnosis was coronary artery disease/congestive heart failure. The Veteran was advised that a stress thallium/echo [echocardiogram] would be ordered, and medications would continue as prescribed. He was advised to follow a low salt/low cholesterol diet, and encouraged to continue an exercise regimen. A June 15, 2010 VAMC pre-anesthesia assessment note, shows a diagnosis of ischemic cardiomyopathy and a proposed ICD [implantable cardioverter defibrillator] placement procedure scheduled for June 24, 2010. Evaluation of the cardiovascular system revealed the Veteran had controlled hypertension, mild angina, coronary artery disease, myocardial infraction in 2000, no coronary artery bypass graft, angioplasty in 2000, and congestive heart failure. An exercise tolerance test revealed fair results of 4 to 6 METs (he was able to walk up to 4 miles per day without difficulty). The provider noted review of the most recent stress test (October 21, 2009), which showed "Large fixed defect with mild-moderate peri-infarct ischemia, extent 5%." Left ventricular ejection fraction (LVEF) was 34 percent. Review of the most recent echocardiogram (October 20, 2009) showed LVEF of 30 to 35 percent. Relevant to this case is the Veteran's June 2010 VAMC discharge summary of an AICD placement procedure that occurred June 24, 2010. The Veteran was admitted to the hospital (for an AICD placement) with ICMP [ischemic cardiomyopathy] with an ejection fraction of 30 percent, coronary artery disease, hypertension and other non-cardiac related disorders. He reported that he had a myocardial infarction in 2000 and underwent a cardiac catheterization with placement of three stents and subsequent thrombosis of the stents during the same admission. He underwent a second catheterization but flow was unable to be re-established. After that admission, he has had chest pain occasionally (approximately once a month) that could occur at rest, was left-sided, non-radiating, and lasts seconds. He reported he does not get chest pain with exertion and walks four miles daily. He stated that he developed heart failure and it was recommended that he have an AICD placed about three years ago. He denied edema, orthopnea, dyspnea on exertion, shortness of breath, or paroxysmal nocturnal dyspnea. Regarding his employability, he was not employed during the period under consideration. His usual occupation, however, was that of a financial analyst. The record shows he retired in February 2008 due to eligibility by age or duration or work. A July 2009 VA mental health outpatient note recorded that the Veteran "is thinking about getting a job or helping wife with her business." It was also noted that the Veteran had obtained a certificate in event planning. After a careful review of the record, the Board finds that a rating in excess of 60 percent is not warranted prior to June 24, 2010 for the Veteran's service-connected heart disability. The Board is unable to assign a 100 percent rating any earlier than June 24, 2010, under 38 C.F.R. § 3.400(o)(2), which allows for an increased benefit to be awarded at the earliest date in which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year of such date. 38 C.F.R. § 3.400(o)(2). Here, the date of claim is July 14, 2010, so the one-year period would begin July 14, 2009. While the medical evidence during this period reflects that the Veteran has congestive heart failure, it has not been labeled as "chronic," such that the medical evidence indicates that there was a factually ascertainable increase within the year prior to July 14, 2010. Further, earlier records reflect diagnosis of heart failure, which, if such were presumed to be indicative of chronic congestive heart failure, would indicate that his increase in disability did not occur within one year of July 14, 2010, the date that he submitted a claim for increased compensation, but, rather, occurred much earlier, and therefore 38 C.F.R. § 3.400(o)(2) does not apply. Further, it is not factually ascertainable that an increase in disability occurred prior to June 24, 2010 and within one year of the July 14, 2010 claim (between July 14, 2009 and June 23, 2010) when considering the alternate criteria for a 100 percent rating for heart disability as the medical evidence during this time shows that the Veteran did not experience a workload of 3 METs or less that resulted in dyspnea, fatigue, angina, dizziness, or syncope or left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. See Codes 7005, 7006, 7011. In this regard, a June 10, 2010 medical record revealed fair results of 4 to 6 METs (he was able to walk up to 4 miles per day without difficulty) and review of the most recent echocardiogram (October 20, 2009) showed LVEF of 30 to 35 percent. Consideration has been given regarding whether the schedular evaluations are inadequate, requiring referral of the claim to the Chief Benefits Director or the Director of the Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1). Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe a Veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. If the schedular rating criteria do not reasonably describe a Veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization is found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating. Here, the schedular criteria under all applicable Codes encompass all symptoms and related functional impairment of the disability shown during the relevant period of evaluation and therefore are not inadequate. Therefore, referral of this matter for consideration of an extraschedular rating is not warranted. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. ORDER Entitlement to a rating in excess of 60 percent prior to June 24, 2010 for coronary artery disease, post myocardial infarction, post angioplasty and stent placement is denied. REMAND Regarding the claim for an increased rating for the service-connected type 2 diabetes mellitus, the Veteran has not been afforded a VA examination to assess this disability since September 2010 (more than four years ago). Given the allegations of increased severity, a contemporaneous examination to assess such disability is necessary. Ongoing reports of VA treatment must also be secured. The claim for a TDIU rating is inextricably intertwined with the claim for an increased rating, as the evidence received in connection with, and the determination on, such claim could materially affect the outcome of the TDIU claim. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). In addition, a medical opinion which specifically addresses the TDIU would assist in the adjudication of this claim. Accordingly, the case is REMANDED for the following action: 1. The AOJ should ask the Veteran to identify the provider(s) of any additional (records of which are not already associated with the record) treatment or evaluation he has received for the service-connected type 2 diabetes mellitus, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation. The AOJ should obtain complete records of all such treatment and evaluation from all providers identified. In addition, specifically secure complete copies of the clinical records of all VA treatment the Veteran has received for type 2 diabetes mellitus since June 2012. 2. After the development sought in Instruction 1 is completed, the AOJ should arrange for a diabetes examination of the Veteran to determine the severity of his service-connected type 2 diabetes mellitus. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies must be completed. Based on review of the record and examination of the Veteran, the examiner must provide opinions that respond to the following: (a) Please identify and describe in detail the pertinent symptoms and manifestations of the Veteran's type 2 diabetes mellitus (and their degree of severity and impact on function). (b) Please specifically comment on the impact of the Veteran's service-connected type II diabetes mellitus on occupational and daily activity functioning. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 3. The AOJ should arrange for the record to be forwarded to a VA Vocational Rehabilitation Division counselor for review and an advisory opinion. Based on review of the record, the counselor should offer an opinion regarding the effect of the service-connected disabilities (coronary artery disease, type 2 diabetes mellitus with ED, residuals of pilonidal cyst, peripheral neuropathy of the lower extremities, and hemorrhoids) had on his employability at any time since January 2008 (a year prior to the date he filed his current claim) to June 24, 2010 (when a 100 percent rating was assigned); consistent with his education (completed 4 years of college and obtained a certificate in event planning) and occupational experience (agriculture examiner). Age and non-service connected disabilities cannot be considered. The consulting vocational specialist should opine whether the Veteran's service-connected disabilities precluded him at any time since January 2008 from participating in any substantially gainful employment consistent with his education and work experience. The consultant should identify (provide examples of) the types of employment that would be inconsistent with the service-connected disabilities (in light of the Veteran's education and work experience) and any types of employment that would remain feasible despite the service-connected disabilities. Further, the consultant should provide an opinion as to whether rehabilitation services would be available to the Veteran with regard to any vocation for which he has the necessary educational skills and background to pursue and for which his mental condition enables him to permit training. The VA vocational counselor should provide rationale for the opinion offered. 4. The AOJ should ensure that all of the development sought is completed, arrange for any further development suggested by any additional evidence received, and then review the record and readjudicate the claim for type 2 diabetes mellitus, followed by the claim for a TDIU rating. If any benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs