Citation Nr: 1644540 Decision Date: 11/25/16 Archive Date: 12/02/16 DOCKET NO. 02-00 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating of 60 percent for coronary artery disease (CAD) from July 6, 2009 to June 20, 2011. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from June 10, 1965 to March 15, 1970 This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Muskogee, Oklahoma, Regional Office (RO) of the Department of Veterans Affairs (VA) which granted service connection for CAD associated with herbicide exposure, and a 60 percent rating was assigned effective October 17, 2003, and a 30 percent rating was assigned effective July 6, 2009. In a February 2015 decision, the Board addressed various issues on appeal, including entitlement to an initial rating in excess of 60 percent for CAD prior to July 6, 2009, and in excess of 30 percent from that date as well as the proper effective date for service connection for CAD. The Board determined that from October 17, 2003 until July 6, 2009, the criteria for a rating in excess of 60 percent for CAD, were not met. The Board further determined that from July 6 2009, the criteria for a rating in excess of 30 percent for CAD were not met. In addition, the Board concluded that October 17, 2003, was the proper effective date for the grant of service connection for CAD. The Veteran appealed the Board's February 2015 decision to the United States Court of Appeals for Veterans Claims (Court) as to several issues, including entitlement to an initial rating in excess of 60 percent for CAD prior to July 6, 2009, and in excess of 30 percent from that date. In a June 2016 Memorandum decision, the Court considered the various issues on appeal and determined that the Board decision on appeal was affirmed in part, set aside in part, and that the matter set aside was remanded. In pertinent part as to the current appeal, the Court affirmed the Board's determination that as to the effective date of October 17, 2003, for the grant of service connection for CAD. The Court noted that while the other issue that had been considered by the Board was entitled to a rating in excess of 30 percent from July 6 2009, the Veteran and his representative had argued that the 30 percent rating (reduced from 60 percent) was not warranted until a June 21, 2011 VA examination when VA medical reports indicated he had metabolic equivalency testing (MET) results that only supported the lower 30 percent rating. There does not appear to be any case or controversy regarding the assignment of a 30 percent rating at least from June 21, 2011. Based on the arguments of the Veteran and his representative as well as the record, the Court determined that the part of the February 12, 2015 Board decision on appeal which assigned an effective date of July 6, 2009, for the lower 30 percent disability rating should be set aside and the matter was remanded for further adjudication. Essentially, therefore, the Court indicated that the Veteran is seeking entitlement to a 60 percent rating until June 21, 2011, when a 30 percent rating would be in order. FINDING OF FACT From July 6, 2009 through June 20, 2011, the Veteran's CAD more nearly approximated the rating criteria for a 60 percent rating. CONCLUSION OF LAW From July 6, 2009 through June 20, 2011, the criteria for a 60 percent rating for CAD, were met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the 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, the Veteran was provided with the relevant notice and information in a December 2003 (CAD) letter prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The issue on appeal is a "downstream issue." Where service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the Veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudicative process, particularly those pertaining to the duty to assist and issuances of rating decisions and statement of the case (SOC). See 38 U.S.C.A. §§ 5103A, 7105(d); 38 C.F.R. §§ 3.159(c), 19.29; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 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 treatment records (STRs), VA records, and identified private treatment records have been obtained and associated with the record. The Veteran was also provided with VA examinations which, collectively, are adequate as the record was reviewed, the examiner reviewed the pertinent history, examined the Veteran provided findings in sufficient detail, provided rationale, and assessed the severity of the disability in question. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). To the extent that further examination is requested, the examinations of record already sufficiently discuss the level of severity of the service-connected disabilities and encompass the Veteran's complaints regarding his disability. The records satisfy 38 C.F.R. § 3.326. In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). CAD Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App 119 (1999), the Court emphasized the distinction between a new claim for an increased evaluation of a service-connected disability and a case (such as this one) in which a veteran expresses dissatisfaction with the assignment of an initial disability evaluation where the disability in question has just been recognized as service-connected. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim-a practice known as "staged rating." See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, in cases where a Veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In this case, as noted in the introductory portion of this decision, the RO assigned staged ratings. The Board agrees that staged ratings are warranted. At issue is at what point the evidence demonstrates that the assignment of a 30 percent rating is warranted following the initially assigned 60 percent rating for CAD. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (CAD), and requires documented CAD. CAD resulting in workload of greater than 7 METs (metabolic equivalent) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. CAD/Arteriosclerotic heart disease resulting in 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, echocardiogram, or X-ray, is rated 30 percent disabling. CAD/Arteriosclerotic heart disease resulting in 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 (LVEF) of 30 to 50 percent, is rated 60 percent disabling. CAD/Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent, is rated 100 percent disabling. For rating diseases of the heart, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, 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. On October 17, 2003, the Veteran's claim of service connection for a heart disability was received. Prior to that date, in 2001, the Veteran had a heart attack and a stent placement after his echocardiogram in January 2001 showed an ejection fraction of 45-50 percent with borderline left atrial size. The Veteran submitted a claim for reimbursement of medical expenses incurred with his cardiac disabilities. However, the initial service connection claim was received in October 2003. His claim of service connection was initially denied in July 2004, which was appealed by the Veteran. However, thereafter, the Veteran was notified that pursuant to the authority granted by the Agent Orange Act of 1991, VA may determine that a presumption of service connection based on exposure to herbicides used in Vietnam is warranted for conditions that VA has found to have a statistically significant association with such exposure. As such, VA determined that a statistically significant association exists between exposure to herbicides and subsequent development of the certain conditions including ischemic heart disease. Service connection for CAD (claimed as cardiac condition) associated with herbicide exposure, for the purpose of entitlement to retroactive benefit, was therefore granted (service connection granted on a presumptive basis) with an evaluation of 60 percent effective October 17, 2003. An evaluation of 30 percent was established effective July 6, 2009, based on a VA examination. The July 6, 2009 VA examination reflected a diagnosis of CAD. His electrocardiogram (ECG) was normal. His ECG showed a grossly normal left ventricular wall motion and contractility; increased echogenicity was seen at the upper portion of the intraventricular septum which would be secondary to the stent in the left anterior descending; trace mitral regurgitation; grossly normal function of tricuspid and aortic valve; a left atrium which was slightly enlarged was also noted. The ejection fraction was normal. The right ventricle was at the upper limits of normal. In August 2010, the Veteran was afforded another VA examination. It was noted that the onset of the heart disease was 2001. The Veteran had a heart attack that year and also underwent a cardiac stent placement. A recent stress test was within normal limits. Currently, there was no evidence of congestive heart failure or pulmonary hypertension. An ECG was performed. It was noted that it was a technically difficult study, but showed grossly normal left ventricular wall motion and contractility. There was increased echogenicity seen at the upper portion of the intraventricular septum which would be secondary to the stent in the left anterior descending. There was trace mitral regurgitation. There was grossly normal function of tricuspid and aortic valve. The left atrium was slightly enlarged. The diagnosis was CAD, status post cardiac stent placement with associated LAD problem. The Veteran did not have any effects on his usual occupation, but the CAD had effects on daily activities due to the fact he tired easily and had difficulty performing the chores. On June 21, 2011, the Veteran was examined. The ECG results were LVEF 55 percent, right ventricle slightly enlarged, trace of tricuspid valve regurgitation, possible mild pulmonary hypertension. There was preserved systolic and diastolic function of the left ventricle at this time. METs of 5-7 level walking and climbing stairs moderate speed were noted. On the METs testing, the Veteran had fatigue, but not dyspnea, angina, dizziness, or syncope. It was noted that the Veteran did not have congestive heart failure. The echocardiogram showed mild pulmonary hypertension. In a November 2011 rating decision, the RO assigned a 60 percent rating under Diagnostic Code 7005 from October 17, 2003 (date of claim), and a 30 percent rating from July 6, 2009 (date of VA examination) under Diagnostic Code 7005. An evaluation of 60 percent was assigned effective October 17, 2003 because the ECG showed an ejection fraction of 45-50 percent. There are three ways to establish a 60 percent rating and one is that the Veteran has left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. The 30 percent reduced rating was assigned effective July 6, 2009 because the ECG on the 2009 examination showed an ejection fraction which was normal with an enlarged left atrium. The RO also cited to the METs criteria, noting that the MET level was 5-7 with a slightly enlarged heart. However, no METs testing results were indicated. In the Court's 2016 Memorandum decision, the Court noted that Diagnostic Code 7005 provides disability ratings based on alternative factors, with the MET results being one of those factors. The Court indicated that the July 2009 VA examination report did not reflect MET results. The Board notes that the August 2010 examination also did not reflect MET results. It appears that the Court was indicating that since the METs findings were not provided, there was no clear change in severity of the CAD from the status when the Veteran was assigned the initial rating of 60 percent. With regard to the time period in question, from July 6, 2009 to June 20, 2011, the VA examination reports did not include findings as to the Veteran's METS results. It did not appear that the Veteran had acute congestive heart failure during that time period. The July 2009 findings did indicate that the ejection fraction was normal and the August 2010 examination revealed grossly normal left ventricular wall motion and contractility. Thus, the Veteran did not meet the first or the third possible way of meeting the requirements of a 60 percent rating. The Veteran had previously met the criteria of having left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent when the 60 percent rating was originally assigned. The METs findings were not shown during the earlier time period, prior to the July 2009 examination, either; thus the METs findings do not appear to be the basis of the original 60 percent rating; rather the basis of the award appeared to be the left ventricular dysfunction. However, in the Memorandum Decision, the Court stated that it was not clear how the Board might properly determine that the Veteran was no longer entitled to a 60 percent rating based on the evidence until the June 21, 2011 examination which showed MET results which were compatible with the lower 30 percent rating. The Board notes that it appears clear that the other two bases were not met, as noted. The examiners in 2009 and 2010 did not provide METs findings nor was that shown earlier to be the basis of a 60 percent rating. In any event, it unclear what the METs findings were until June 21, 2011, when METs of 5-7 level walking and climbing stairs moderate speed were demonstrated, with fatigue, but not dyspnea, angina, dizziness, or syncope. In light of the directives of the Court which suggest that the 60 percent rating should not be reduced absent the METs findings showing better functioning and the fact that the METs findings for the time period in question cannot be determined at this juncture, the Board finds that the Veteran's initial 60 percent rating should remain in effect until June 21, 2011, since the evidence is incomplete and therefore does not clearly show that the CAD exhibited symptoms which would warrant a different (lower) rating prior to June 21, 2011, when the pertinent METs testing was performed. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a higher rating of 60 percent for CAD until June 21, 2011 which is the appropriate effective date for a 30 percent rating. In considering the claim for a higher rating, the Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the C&P Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board notes that symptoms associated with the Veteran's CAD during the time period in question were not shown to cause any impairment that was not already contemplated by the relevant diagnostic code, as cited above, and the Board finds that the rating criteria reasonably describe his disability. There were not frequent hospitalizations or marked interference with employment. A VA examiner addressed employment and indicated that the CAD did not have any effects on usual occupation. Therefore, referral for consideration of an extraschedular rating is not warranted. (Continued on the next page) ORDER A 60 percent rating for CAD for the time period of from July 6, 2009 to June 20, 2011 (with the current 30 percent rating effective from June 21, 2011), is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs