Citation Nr: 1738720 Decision Date: 09/13/17 Archive Date: 09/22/17 DOCKET NO. 12-32 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent prior to August 19, 2010, and in excess of 30 percent thereafter, for coronary artery disease. 2. Entitlement to service connection for a low back disorder to include a lumbar muscle strain and lumbar disc degeneration. REPRESENTATION Appellant represented by: Penelope Gronbeck, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Hoover, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. A Notice of Disagreement was received in August 2011. In September 2012, a Statement of the Case was issued, and, in November of that year, the Veteran filed his substantive appeal (via a VA Form 9). In March 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is of record. In February 2015, the Board remanded the claims on appeal for additional development and the case now returns for further appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. The record also reflects that the issue of entitlement to service connection for arthralgia of the right hand before the Board was resolved while the case was in remand status. The RO awarded service connection in a rating decision issued in March 2016. The Veteran disagreed with the initial rating assigned, and a statement of the case was issued in November 2016. The Veteran perfected his appeal to the Board by filing VA Form 9 in December 2016 at which time he requested a Board videoconference hearing. The Veteran subsequently withdrew his hearing request in December 2016. The Board is required by statute to adjudicate cases in docket order, except for certain situations set forth under 38 U.S.C.A. § 7107. As this case is not yet ready for adjudication under docket order requirements, the Board is prohibited from issuing a decision on the other issue on appeal. Accordingly, any additional issue that has been certified to the Board remains pending at the Board and will be addressed in a separate decision in docket order. The issue of entitlement to service connection for a low back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period from February 24, 2004 to August 19, 2010, the Veteran's coronary artery disease status post myocardial infarction did not involve evidence of cardiac hypertrophy, chronic congestive heart failure, or a LVEF of 50 percent or less; a workload of 7 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope was not shown. 2. For the period from August 20, 2010 to present, the Veteran's coronary artery disease status post myocardial infarction did not involve chronic congestive heart failure, or a LVEF of 50 percent or less; a workload of 5 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope was not shown. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent from February 24, 2004 to August 19, 2010, for coronary artery disease are not met. 38 C.F.R. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.104, Diagnostic Code (DC) 7017-7005 (2016). 2. The criteria for an initial evaluation in excess of 30 percent from August 20, 2010 to present for coronary artery disease are not met. 38 C.F.R. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.104, Diagnostic Code (DC) 7017-7005 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim and what the evidence in the claims file shows, or fails to show, with respect to those claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. VA'S DUTY TO NOTIFY AND ASSIST With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Specifically, the Board finds that VA has satisfied its duty to notify under the Veterans Claims Assistance Act (VCAA) by way of a September 2010 letter which was sent prior to the initial unfavorable decision in June 2011. Such letter advised the Veteran of the evidence and information necessary to substantiate his claim. Furthermore, the Veteran was informed of his and VA's respective responsibilities in obtaining such evidence and information. The letter also informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the claimant in the development of a claim. This duty includes assisting the claimant in the procurement of service treatment records and pertinent post-service treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). VA must make reasonable efforts to assist a claimant in obtaining evidence, unless no reasonable possibility exists that such assistance will aid in substantiating the claim. 38 U.S.C.A. §§ 5103A (a)(1) and (2) (West 2014). The Veteran was afforded two VA examinations regarding his heart condition in October 2010 and July 2015. The examiners reviewed the Veteran's claims file, interviewed the Veteran, were informed of and documented the relevant facts regarding the Veteran's medical history and current status, and conducted a physical examination. The opinions show that the examiners considered all relevant evidence of record, including the Veteran's statements. Thus, the Board finds these examination reports to be adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As noted in the Introduction, this case was previously remanded in February 2015 in order to obtain a more recent VA medical examination for the Veteran's heart. The Veteran was provided a heart examination in July 2015. In light of the foregoing, the Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Board has carefully considered VA's duties to notify and assist, and finds that they have been met. The Veteran has been provided with a meaningful opportunity to participate in the claims process and has been an active participant in it by providing evidence. Moreover, neither the Veteran nor his representative has identified any outstanding evidence that could be obtained relating to his claim; the Board also is unaware of any such evidence. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). The Board finds that all necessary development has been accomplished and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). INCREASED RATING Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. U.S.C.A. § 1155 (West 2014); 38 C.F.R. § Part 4 (2016). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in the VA's Schedule for Rating Disabilities, which is based, as far as can practically be determined, on average impairment in earning capacity. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Veteran. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when disability may have been more severe at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is a question as to which of two ratings apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 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 (2016). The Veteran's coronary artery disease has been evaluated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005. Under DC 7005, a 10 percent evaluation is assigned for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent evaluation is warranted for a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent evaluation is warranted for 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; 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, DC 7005. A note prior to the Diagnostic Code explains that 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 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). Coronary Artery Disease The Veteran contends that he rates an evaluation greater than 30 percent for his service connected coronary artery disease. The Veteran's service personnel record indicates that he served in Vietnam from May 1968 through May 1969. As such, the RO conceded herbicide exposure and granted service connection for coronary artery disease in a June 2011 rating decision. The RO assigned a staged rating of 10 percent to the Veteran with an effective date of February 24, 2004 through August 18, 2010, as the application for PTSD benefits was received in February 2004, and during the course of the claim, CAD was discovered. The RO granted a 30 percent staged rating effective August 19, 2010, which was the date of the echocardiogram which indicated hypertrophy. As such, both staged ratings are before the Board. The Veteran was noted to have a myocardial infarction in 1997 and underwent a percutaneous coronary intervention with stent placement in 1998. (See VA outpatient treatment notes, September 2003). Dr. D.M. noted normal left ventricular size and left ventricular ejection fraction (LVEF) of 55-65 percent. The Veteran denied any symptoms of illness in November 2006. The Veteran underwent an exercise treadmill test in November 2007, which revealed evidence of ischemia. The Veteran achieved a METs level of 9. An echocardiogram in August 2010 revealed hypertrophy. The Veteran underwent a stress test in October 2010, during which he complained of chest discomfort. The stress test showed a metabolic equivalent unit (METs) value of 8.6. The October 2010 VA examiner noted a diagnosis of ischemic heart disease since 1997 and documented that the Veteran was treated with Pravastatin, aspirin, and Propranolol. The examiner stated that the Veteran's heart condition does not impact his ability to work. Imaging from VAMC Togus from November 2010 indicated ischemia with LVEF of 67 percent. VAMC cardiology notes from January 2011 indicate that the CAD remained stable and without symptoms. During the Veteran's March 2013 hearing, the Veteran reported that he experiences "a lot" of angina, and reported being in current pain. He reported that stress exacerbates his symptoms. The Veteran also reported becoming winded when climbing stairs, too fatigued and out of breath to walk up his driveway, and feeling off balance, having to use a cane and using a walking stick for assistance. In June 2014, the Veteran underwent a nuclear stress test in February 2014, which showed no evidence of ischemia or infarction. (See June 2014 VAMC treatment note). The Veteran was provided a VA examination in July 2015, during which the examiner indicated that there was a LVEF of 65 percent as evidenced by a myocardial spect multi rest/stress test. The examiner also noted hypertrophy as evidenced by EKG studies and METs of greater than 5-7. The examiner reported no cardiac arrhythmias or congestive heart failure. In this case, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Following a review of the relevant evidence of record, which includes VA treatment records, the Veteran's lay statements, private medical records, and VA examination reports, the Board finds that the preponderance of the evidence shows that his CAD does not warrant an increased rating. The Board notes that the Veteran indicated symptoms of dyspnea, fatigue, angina, and dizziness while climbing stairs, walking up his driveway, and during stressful situations during his hearing. However, the statutory guidelines for MET testing under DC 7005 allow for a medical examiner to make an estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) when a stress test is not able to be conducted. In this case, the Veteran was able to complete multiple stress tests, which all indicated MET evaluations over 7, and the medical examiner reviewed the record to include the examples provided by the Veteran and still determined that the Veteran's METs were over 7. As such, the most probative evidence establishes that the Veteran's coronary artery disease does not exceed the current rating criteria. Accordingly, an increased rating is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and it must be denied. OTHER CONSIDERATIONS Additionally, the Board finds that at no point pertinent to the claim for increased rating has the Veteran's heart disability been shown to be so exceptional or so unusual a picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321 (b)(1). The threshold factor for extra-schedular consideration is a finding on the part of the AOJ or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321 (b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the AOJ 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" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321 (b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. In this case, however, the Board finds that the schedular criteria are adequate to rate the Veteran's service-connected heart disability, as the rating schedule fully contemplates the described symptomatology for his disability, including shortness of breath, fatigue, loss of balance and chest pain. The evidence summarized above does not show any additional functional impairment that is not contemplated by the schedular criteria. There is no medical indication or argument that the applicable criteria are inadequate to rate the heart disability. Furthermore, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. Here, however, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. See Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016). ORDER Entitlement to an initial rating in excess of 10 percent prior to August 19, 2010, and in excess of 30 percent thereafter, for coronary artery disease is denied. REMAND Low Back Disorder The Veteran contends that his low back disorder to include lumbar segmental dysfunction, lumbar muscle strain, lumbar spinal stenosis, and lumbar disc degeneration is related to his active duty service due to filling and lifting sandbags. (See Hearing transcript, p.19). The Veteran's entrance examination in his service treatment records referenced treatment for a lower back strain in April 1966, prior to active duty service. The Veteran's April 1967 report of medical history shows that the Veteran reported a history of swollen and painful joints. The entrance examiner noted that the Veteran was referring to his low back and that he sprained his back in April 1966. The entrance examiner also noted that X-rays were negative for evidence of a low back disorder. The Veteran's service treatment records do not show any complaints of, treatment for or diagnosis of a low back disorder. VA treatment reports showed various complaints of a back condition to include a 2007 MRI showing a herniated nucleus populous with nerve involvement, and notation that the Veteran had a history of surgery in the same area. In 2008, it was noted that the Veteran had back surgery for a bone chip pressing against his spinal cord or nerve. In November 2010, it was noted in the VA Medical Center treatment notes that the Veteran fell on a step and was found to have a herniated disc. The Veteran underwent back surgery in 2011. Records from the Social Security Administration show that the Veteran sustained an injury in 2007 when he was exercising at the YMCA, which resulted in low back and left groin complaints. X-rays revealed mild degenerative changes with no acute abnormality identified. The Veteran was diagnosed with a sprain/strain of the lumbosacral spine. SSA records also indicated that the Veteran had a herniated disc in 1994. (SSA Disability Report, Form 3368). The Veteran testified at his March 2013 Board hearing that he has had ongoing pain since service, and that he immediately sought treatment following service from a private provider who has since passed away. A July 2015 VA examination was obtained in order to determine the nature and etiology of the Veteran's back condition. The examiner selected that it is "clear and unmistakable that the low back condition pre-existed service," and subsequently noted that it is "least as likely as not that the Veteran's low back condition pre-existed service and was not aggravated beyond its natural progression by any activity during active military service." See July 2015 examination opinion. The Board finds that additional commentary from the VA examiner is necessary prior to rendering a decision on the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion to the July 2015 VA back examination regarding the nature and etiology of the Veteran's back claim. The file must be provided to and reviewed by the examiner. The examiner is requested to provide an opinion as to the following question: Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's currently diagnosed lumbar disabilities, to include lumbar segmental dysfunction, lumbar muscle strain, lumbar spinal stenosis, and lumbar disc degeneration, are etiologically related to the physical activity of lifting and filling sandbags during the Veteran's military service. In so opining, the examiner should address the likelihood that physical activity such as described by the Veteran could have caused the Veteran's current low back conditions. All opinions must be supported by a clear rationale. 2. After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 2014). ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs