Citation Nr: 1604583 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 11-05 526A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to an increased rating for coronary artery disease (CAD), currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to May 1968 and earned a Vietnam Combat Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont. On May 10, 2012, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In April 2014, the Board denied an effective date prior to May 8, 2001 for service connection for CAD and remanded the issue remaining on appeal for additional development. The paper claims folder has been converted into an electronic record within the Veterans Benefits Management System (VBMS) and Virtual VA. FINDING OF FACT The Veteran's CAD requires continuous medication; it does not result in dyspnea, fatigue, angina, dizziness or syncope with a workload of 7 metabolic equivalents (METs) or less or cardiac hypertrophy or dilatation on cardiac testing. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for coronary artery disease (CAD) have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014 & Supp. 2015); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 7005 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this matter, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of the specific diagnostic codes that are to be considered. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). A July 2010 letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. It also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify has been met. Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records, VA treatment records through July 2014, private treatment records, and statements from the Veteran. The Board remanded the claim in April 2014 to provide the Veteran another opportunity to submit updated private treatment records. In a May 2014 letter, he was instructed to identify any recent cardiac treatment. He did not respond. 38 C.F.R. § 3.159(c)(1). The Veteran was afforded pertinent VA examinations in July 2010 and June 2014. The examination reports were thorough. The June 2014 clinical findings were fully responsive to the rating criteria. There is no evidence that service-connected CAD materially increased in severity since June 2014. VA has furnished adequate examinations and medical opinions for the claim. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also finds that the April 2014 remand instructions have been substantially fulfilled. The RO/AMC sent a May 2014 letter requesting that the Veteran identify all treatment records and instructed him to complete the release of medical records and return the release to VA. It furnished a June 2014 VA cardiac examination that is responsive to the applicable rating criteria. Then, it issued a September 2014 supplemental statement of the case (SSOC) based upon review of the newly generated evidence. For these reasons, the record is in substantial compliance with the prior remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Accordingly, the Board finds that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) have been satisfied. II. Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In cases 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, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. In such cases, staged ratings are appropriate when the factual findings show distinct time periods where the service- connected disability exhibits symptoms that would warrant different ratings for each such distinct time period. 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. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 Veteran is service-connected for coronary artery disease (CAD) associated with diabetes with a disability rating of 10 percent. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005. Under DC 7005, arteriosclerotic heart disease with documented CAD resulting in chronic congestive heart failure, or; workload of 3 metabolic equivalents of tasks (METs) or less result in dyspnea, fatigue, angina, dizziness, or syncope, left ventricular dysfunction with an ejection fraction of less than 30 percent warrants a 100 percent evaluation. More than one episode of acute congestive heart failure in the past year; or workload of greater than 3 METs, but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent warrants a 60 percent evaluation. A workload of greater than 5 METs, but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram or echocardiogram, or X- ray warrants a 30 percent evaluation. A workload of greater than 7 METs, but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required warrants a rating of 10 percent. 38 C.F.R. § 4.104, DC 7005. Evaluation under this code requires a determination as to whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication. 38 C.F.R. § 4.100(a). The VA examination reports and clinical records indicate that the Veteran has been taking CAD medication throughout the claims period. Additionally, even if the requirement for a 10 percent rating (based on the need for continuous medication) or 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) evaluation is met; METs testing is required in all cases except for a few exceptions. 38 C.F.R. § 4.100(b). If left ventricular ejection fraction (LVEF) testing is not of record, the disability is to be evaluated based on the alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability. 38 C.F.R. § 4.100(c). For background purposes, the Veteran had a myocardial infarction (MI) in June 1996. He had another one in 2001 and underwent stent placement. He had a February 2006 hospitalization for atrial fibrillation. He has not had any additional acute cardiac events necessitating immediate medical attention. July 2009 private stress test report shows that the Veteran had a resting ejection fraction of 57 percent. The impression was listed as: (1) abnormal myocardial perfusion scan; (2) prior nontransmural basilar inferior wall infraction without peri-infarct ischemia; (3) normal resting ejection fraction of 57 percent with tardokinesis of the basilar inferior wall; and (4) good exercise tolerance. August 2009 private medical records show that the Veteran had subjective complaints about chest pain. However, the examiner noted the normal findings upon cardiac diagnostic testing. He indicated that the chest pain originated from the pectoral muscles. It was non-cardiac in nature. He concluded that there was no change in cardiac status. February 2010 private medical records reflect that the Veteran continued to complain about chest discomfort. The physician noted that the Veteran had not experienced any exertional symptoms during exercise. Clinical examination indicated that his chest pain again originated from his pectoral muscles. March 2010 private medical records show that the Veteran was asymptomatic in regards to CAD. However, he continued to have atrial fibrillation. It was assessed as stable and free from complication. No medication changes were considered. In July 2010, the Veteran had a VA cardiac examination with review of the claims folder. The examiner recited the pertinent medical history. He noted the current medication regimen for CAD management. The Veteran reported being actively engaged in cardiac rehabilitation and believed it was highly beneficial. It enabled him to walk for 30 minutes on a treadmill; however, he could not walk longer than 10 or 15 minutes with a slight incline. He was able to climb 3 to 4 flights of stairs without symptoms. He reported that he was medically retired following his 2006 hospitalization for atrial fibrillation. Clinical examination showed that the Veteran's heart had a regular rate and rhythm. Lungs were clear to auscultation. Extremities were free from edema. Posterior pulses were intact. The examiner commented that he did not find evidence of heart failure. He noted the results from a January 2006 exercise stress test. The Veteran reported having a Cardiolite stress test in 2009 and believed it showed minimal changes in function. The examiner assessed cardiovascular disease, atrial fibrillation, and history of MI. January 2011 VA primary care records reflect that the Veteran was in the process of obtaining a Holter monitor. Although he continued to participate in cardiac rehabilitation, he developed flutters when sedentary. He acknowledged significant caffeine use history and discontinuance of symptoms upon caffeine cessation. Clinical examination was grossly normal. The examiner assessed atrial fibrillation with medication. In February 2011, the Veteran asserted that he had ischemia since he had a MI history. He believed that his METS measurements were not representative of his underlying disability due to his medication compliance and diet and exercise efforts. In March 2011, the Veteran reported taking multiple medications for CAD management as prescribed by his physician. He significantly altered his diet and discontinued all caffeine use. He had participated in cardiac rehabilitation on a regular basis for over 5 years. He believed his diet and exercise efforts were not adequately considered by the schedular rating criteria. January 2012 VA primary care records indicate that the Veteran's cardiac symptoms were stable. At the May 2012 hearing, the Veteran reported that he stopped hunting and fishing due to his heart disability. He also had to take an early retirement from his longstanding occupation due to it. In June 2014, VA reexamined the Veteran for his heart disability. The examiner listed diagnoses of MI, atherosclerotic cardiovascular disease and atrial fibrillation. Since the last examination, the Veteran reported his cardiac symptoms as occasional shortness of breath and awkward sensations in the upper neck area. He stated that they were triggered by activity, such lawn mowing and walking. He had nitroglycerin tablets, but had not used them recently. He continued to participate in cardiac rehabilitation. He reported intermittent atrial fibrillation episodes at night. He followed a cardiac medication regimen, and the examiner indicated it was necessary for treatment. The examiner reported that the Veteran did not have a history of congestive heart failure, heart valve condition, infectious heart condition or pericardial adhesions. The Veteran was last hospitalized for a cardiac disorder in February 2006 when he had his initial onset of atrial fibrillation. Clinical examination showed the Veteran to have 60 pulse and regular heart rhythm. Heart sounds was notable for a soft systolic murmur. No jugular-venous distension was found. Auscultation of the lungs was clear. Peripheral pulses were normal. No edema was observed. Blood pressure was 140/ 70. For diagnostic testing, the examiner reported that there was no evidence of cardiac hypertrophy or cardiac dilation. Contemporaneous electrocardiogram (EKG) was normal. Echocardiogram showed LVEF of 60 percent. Wall motion and thickness was normal. Exercise stress test showed an exercise capacity of 140 percent predicted. The Veteran was free from chest discomfort and had a normal blood pressure and heart rate response during testing. The examiner concluded that the EKG stress test was negative for ischemia. In an addendum written three days later, the examiner reported that the Veteran achieved a 10.1 METS. He intended to include it in the original report. The Veteran contends that a rating in excess of 10 percent is warranted. He believes the significant diet and lifestyle modifications he has made warrant additional compensation. He also reports that the clinical test results indicate improved function only as a result of his diet and cardiac rehabilitation efforts and do not accurately document the underlying disability. The Board acknowledges the Veteran's equitable contentions. Nonetheless, the Board is bound to evaluate the appeal in light of VA laws and regulations. 38 U.S.C.A. §§ 503, 7104 (West 2014); Harvey v. Brown, 6 Vet. App. 416 (1994). In this case, the rating criteria under DC 7005 govern the claim. 38 C.F.R. § 4.104, DC 7005. The Veteran has a cardiac history of MI and stent placement. He developed atrial fibrillation in 2006. Throughout the appeal, he has been treated with continuous medication for heart disease management. Nevertheless, the applicable exercise stress test result do not show that he exhibits a workload of 7 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope. There was no evidence of cardiac hypertrophy or dilatation on electrocardiogram or echocardiogram, or X- ray. See July 2010 and June 2014 VA examination reports. Ejection fraction of 50 percent or less was not demonstrated or nearly approximated during the appeals period. These findings are consistent with the criteria for a 10 percent rating. See 38 C.F.R. § 4.104, DC 7005. The evidence does not show that the Veteran's service-connected CAD approximates the criteria for a rating in excess 10 percent. Id. The appeal must be denied. Id.; 38 C.F.R. §§ 4.3, 4.7. Additional rating considerations The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board finds that the severity of the Veteran's service-connected heart disease to be fully contemplated by the rating criteria applicable whether considered alone or in conjunction with the additional service-connected disabilities. The heart symptoms include decreased exercise tolerance, intermittent heart flutter and necessitate a medication regimen. The evidence does not show extraordinary symptoms arising from this disability or in combination with additional service-connected disabilities. Although the Veteran no longer works, the reports found within the record are unclear as to whether it is due to heart disease or general economic conditions. Marked interference with employment is not shown. Consequently, the degree of disability exhibited is contemplated by the rating schedule for CAD, and the Board finds that the threshold test is not met for referral for extraschedular consideration. 38 C.F.R. § 4.16(b); Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran retired from his long-standing employment in approximately 2006. He has been in receipt of an individual unemployability rating throughout the appeal. Additional action for an individual unemployability claim is not needed. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A rating for coronary artery disease (CAD) in excess of 10 percent is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs