Citation Nr: 1748233	
Decision Date: 10/26/17    Archive Date: 11/03/17

DOCKET NO.  11-30 764	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an increased rating for ischemic heart disease, status post old myocardial infarctions, rated as 10 percent from May 17, 2010, to January 6, 2011, and 30 percent from January 7, 2011, to January 12, 2016.  


ATTORNEY FOR THE BOARD

B. Cannon, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from March 1966 to March 1968, and was awarded a Purple Heart medal.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which assigned a 10 percent rating for the Veteran's ischemic heart disease.  By correspondence dated May 2013, the Veteran withdrew his earlier request for a hearing.  38 C.F.R. § 20.704(e).  

In November 2013, the Board remanded the appeal, and in a May 2017 rating decision, the RO increased the rating for ischemic heart disease to 30 percent, effective from January 7, 2011, and to 100 percent effective from January 13, 2016.  The Board has recharacterized the issue on appeal to comport with this development.


FINDINGS OF FACT

1.  From May 17, 2010, to January 6, 2011, the Veteran's ischemic heart disease, status post old myocardial infarctions, is characterized by continuous medication use, but not by a workload of less than 7 METs, evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray, or left ventricular dysfunction with an ejection fraction of 50 percent or less.  

2.  From January 7, 2011, to January 12, 2016, the Veteran's ischemic heart disease, status post old myocardial infarctions, is characterized by left ventricular dysfunction with an ejection fraction of 30 to 50 percent, but not by chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent


CONCLUSIONS OF LAW

1.  From May 17, 2010, to January 6, 2011, the criteria for an initial disability rating in excess of 10 percent for ischemic heart disease, status post old myocardial infarctions, have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.104, Diagnostic Code 7005 (2016).

2.  From January 7, 2011, to January 12, 2016, the criteria for a disability rating of 60 percent, but no greater, for ischemic heart disease, status post old myocardial infarctions, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.104, Diagnostic Code 7005 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016). 

VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings."  Hart v. Mansfield, 21 Vet. App. 505 (2007).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In December 2010, the RO granted the Veteran service connection for ischemic heart disease, status post old myocardial infarctions.  The Veteran is appealing that decision.  Because the claim is an initial claim, the Board will consider evidence of symptomatology from May 17, 2010, the date that the claim was filed.  38 C.F.R. § 3.400(o).

The Veteran is rated under Diagnostic Code 7005 at 10 percent from May 17, 2010, at 30 percent from January 7, 2011, and at 100 percent from January 13, 2016.  Diagnostic Code 7005 relates to arteriosclerotic heart disease (coronary artery disease).  38 C.F.R. § 4.104 (2016).  Under that code, a 10 percent rating is appropriate for a workload of greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication required.  Id.  A 30 percent rating is appropriate 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 dilation on electro-cardiogram, echocardiogram, or X-ray.  Id.  A 60 percent rating is appropriate for more than one episode of acute congestive heart failure in the past year; or, a 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.  Id.  A 100 percent rating is appropriate for chronic congestive heart failure; or, 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.  Id.  

In November 2010, a VA examiner indicated that the Veteran was taking continuous medication, that there was no evidence of cardiac hypertrophy or dilation, and that the Veteran's METs level was greater than 10.  These symptoms are consistent with the 10 percent rating assigned from May 17, 2010, to January 6, 2011.  

The Veteran was assigned a 30 percent rating from January 7, 2011, based on an echocardiogram of that date noting mild ventricular hypertrophy.  There is no additional evidence on that date to support a higher rating.  However, a VA medical note dated January 10, 2011, indicates that the Veteran has a left ventricle ejection fraction of 50 percent, and consistent with this, a December 2013 form filled out by a private physician also indicates a left ventricle ejection fraction of 50 percent in 2011, although this physician does not state the date of or provide documentation regarding the date of the test.  This symptomatology is consistent with a 60 percent rating and giving the Veteran the benefit of the doubt, the Board will apply such findings to the earliest day in January 2011 the Veteran was evaluated for this disability, which was January 7, 2011.  

A private medical record dated January 13, 2016, indicates a left ejection fraction volume of 20 to 25 percent.  There is no evidence of a left ejection fraction of less than 30 percent prior to this date so a rating in excess of 60 percent prior to January 13, 2016, is not warranted.  

The evidence does not support additional staged ratings for any time period on appeal.  For no period would the Veteran be entitled to a higher rating under a different Diagnostic Code.  Lastly, the Board finds that the issue of an extraschedular rating has not been raised by the record, and will not consider referral.  Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017).


ORDER

From May 17, 2010, to January 6, 2011, entitlement to a rating in excess of 10 percent for ischemic heart disease, status post old myocardial infarctions, is denied.  

From January 7, 2011, to January 12, 2016, entitlement to a rating of 60 percent, but no greater, for ischemic heart disease, status post old myocardial infarctions, is granted, subject to the laws and regulations governing the payment of monetary benefits.  




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs