Citation Nr: 1745883 Decision Date: 10/16/17 Archive Date: 10/31/17 DOCKET NO. 13-19 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an evaluation in excess of 30 percent for coronary artery disease since January 8, 2013. REPRESENTATION Appellant represented by: American Red Cross WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) from a June 2011 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified at a hearing before the undersigned in August 2014. After denying entitlement to an increased rating for coronary artery disease from August 31, 201 to January 7, 2013, the Board in February 2016 remanded the claim of entitlement to an increased rating for cad since January 8, 2013 for further development. In an April 2016 rating decision, entitlement to a total disability rating based on individual unemployability was granted, effective February 28, 2015. As the Veteran has not disagreed with the effective date assigned, that decision constitutes a full grant of the benefit sought, and the issue is no longer before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDING OF FACT Since January 8, 2013, the Veteran's coronary artery disease has not been manifested by more than one episode of acute congestive heart failure in the past year; symptoms of dyspnea, fatigue, angina, dizziness, or syncope under workload of greater than 3 Metabolic Equivalents of Task (METs) but not greater than 5 METs; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for coronary artery disease since January 8, 2013 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION 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). The Veteran contends that his service-connected coronary artery disease warrants a rating higher than 30 percent since January 8, 2013. The Veteran testified in August 2014 that he has had two stents put in his heart. He reported that he tires very quickly, and has passed out a few times at work. He stated that he feels exhausted and that his legs feel very heavy and puffy by the end of the day. He discussed being no longer able to do yardwork or to keep up with the younger people at his work. He stated that he could walk a mile on flat ground. The Veteran wrote in July 2013 that he had dizzy spells, shortness of breath, and feelings of being run down. He wrote that this disorder made it difficult for him to lift heavy objects and causes him to feel exhausted by the end of the day. 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 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection to consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 199, 126 (1999); see also Hart v. Mansfield, 21 Vet.App. 505 (2007). Currently, only the stage since January 8, 2013 is under consideration by the Board. The Veteran's coronary artery disease has been evaluated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. Under this diagnostic code, a 30 percent evaluation is warranted with documented coronary artery disease resulting in 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 dilation on electrocardiogram, echocardiogram or X-ray. Id. A 60 percent evaluation is warranted with 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. Id. The Veteran attended a VA examination in January 2013. Left ventricular dysfunction ejection fraction was noted to be 59 percent. Exercise METs testing was not performed but the Veteran specifically denied experiencing any symptoms such as dyspnea, fatigue, angina, dizziness, or syncope while performing any level of physical activity. The Veteran was reportedly asymptomatic with daily activity and moderate exertion, and he had unlimited exercise tolerance. He could walk for more than a half hour without getting any chest pain or shortness of breath. The Veteran most recently attended a VA examination in March 2016. The Veteran reported that he had lost weight, and that this improved his exercise tolerance. He reported that he had occasional chest pressure, which resolved after a few minutes. The Veteran required continuous medication for control of his heart condition. Physical examination found normal heart sounds, regular rhythm, normal pulses, and no lower extremity peripheral edema. An exercise stress test was found to be not required, but an interview-based METs test was provided. The Veteran reported dyspnea and fatigue following activity that was consistent with activities such as walking one flight of stairs, golfing, mowing the lawn, or doing heavy yard work. He also reported that his legs got heavy with prolonged exercise. The examiner opined that this was consistent with a METs level of greater than 5 to 7 METs. The examiner wrote that the Veteran could not do strenuous activities. The Veteran's VA treatment records do not show any further evidence of treatment or complaints related to coronary artery disease which would be in favor of the claim for an increased rating. At follow-up evaluations for coronary artery disease in 2015, the Veteran denied any shortness of breath, headache, or dizziness. No further symptoms or complications were found. The Veteran has not indicated that he has received any other treatment related to coronary artery disease, and there is no medical evidence indicating any further symptomatology that that found at the VA examinations. The results of the Veteran's VA examinations neither warrant an evaluation in excess of 30 percent, nor provide evidence that the Veteran has had more than one episode of acute congestive heart failure in any twelve month period since January 8, 2013, or that he suffered from dyspnea, fatigue, angina, dizziness or syncope under a workload of greater than 3 METs but not greater than 5 METs, or that he has had left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Rather, the evidence specifically demonstrates the Veteran did not have any episodes of congestive heart failure, physical evaluation of the heart in 2016 was normal with no dysfunction noted, he has been largely asymptomatic, and his reports of feeling shortness of breath, fatigue, and heavy legs with moderate physical activity are consistent with the 30 percent already assigned, and does not indicate that any higher rating is warranted. The Board has considered the Veteran's lay statements regarding his symptomatology, such as his statements regarding being unable to perform some physical activities and feeling excessively tired with heavy legs by the evening. In determining the actual degree of disability, however, an objective examination is more probative of the degree of the Veteran's impairment due to coronary artery disease. Furthermore, the lay opinions and observations of the Veteran cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.104, Diagnostic Code 7005, which outlines specific objective criteria required of each disability rating. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Board concludes that the preponderance of the evidence is against entitlement to an evaluation in excess of 30 percent for coronary artery disease since January 8, 2013. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Lastly, the question of entitlement to referral for consideration of an extraschedular rating is neither an issue argued by the claimant nor reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities. Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). ORDER Entitlement to an evaluation in excess of 30 percent for coronary artery disease since January 8, 2013 is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs