Citation Nr: 1750157 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 12-32 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation for service-connected coronary artery disease, status post coronary artery bypass graft, in excess of 10 percent disabling prior to November 8, 2012; in excess of 30 percent from November 8, 2012 through May 18, 2016; and in excess of 60 percent as of May 18, 2016. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel INTRODUCTION The Veteran had active service with the Army from January 1969 to August 1970, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO), which granted service connection for coronary artery disease, status post coronary artery bypass graft, and assigned a 10 percent disability evaluation effective November 13, 2009, the date of the Veteran's claim. Within a November 2012 VA Form 9, the Veteran elected for a videoconference hearing but withdrew his hearing request in June 2015 correspondence. Accordingly, the hearing request has been withdrawn. In an October 2016 rating decision, the RO granted an increased 30 percent disability rating for service-connected coronary artery disease effective November 8, 2012, and granted an additional increased evaluation of 60 percent from May 18, 2016. AB v. Brown, 6 Vet. App. 35, 38 (1993) (a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal). The appeal is now before the Board for appellate proceedings. FINDINGS OF FACT 1. For the rating period prior to November 8, 2012, the Veteran had an estimated workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea; with continuous medication required. 2. For the rating period from November 8, 2012 through May 18, 2016, the Veteran had an estimated workload of greater than 5 METs but not greater than 7 METs resulting in fatigue and angina. 3. For the rating period as of May 18, 2016, the Veteran has had an estimated workload of greater than 3 METs but not greater than 5 METs resulting in fatigue, angina and dizziness. CONCLUSION OF LAW 1. For the rating period prior to November 8, 2012, the criteria for an initial evaluation in excess of a 10 percent for service-connected coronary artery disease, status post coronary artery bypass graft, have not been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.140, Diagnostic Code (DC) 7005 (2016). 2. For the rating period from November 8, 2012 through May 18, 2016, the criteria for an initial evaluation in excess of 30 percent for service-connected coronary artery disease, status post coronary artery bypass graft, have not been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.140, DC 7005 (2016). 3. For the rating as of May 18, 2016, the criteria for an initial evaluation in excess of 60 percent for service-connected coronary artery disease, status post coronary artery bypass graft, have not been met. 38 U.S.C.A. § 1155, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.140, DC 7005 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose 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), 3.326(a) (2016). Here, the RO issued preadjudicatory notice to the Veteran in November 2009 which met the VCAA notice requirements with respect to entitlement to service connection for coronary artery disease. Id. Because the appeal for a higher rating for service-connected coronary artery disease stems from the initial grant of service connection, additional notice was not required in this case. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (2016). VA has also made reasonable efforts to obtain relevant records and evidence needed to substantiate the claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2016). The information and evidence that has been associated with the claims file includes private medical records, VA treatment records, lay statements, and VA examinations. No further private or VA medical treatment records were identified or furnished by the Veteran in connection with his claim. VA examinations were provided in September 2010 and May 2016 addressing the Veteran's claim for an increased evaluation for service-connected coronary artery disease. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations to address the Veteran's claimed disability has been met. 38 C.F.R. § 3.159(c)(4) (2016). Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board. . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Disability Rating Laws and Regulations 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 (West 2014); 38 C.F.R. § 4.1 (2016). 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 (2016). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). 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 a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran was assigned an initial 10 percent rating for coronary artery disease, status post coronary artery bypass graft, effective November 13, 2009. The Veteran did not appeal the effective date. As noted in the introduction, a subsequent rating decision granted an increased a 30 percent rating from November 8, 2012 through May 18, 2016; and a 60 percent rating as of May 18, 2016. The Board finds that symptoms related to coronary artery disease, status post coronary artery bypass graft, have changed in severity over the course of the appeal; however, as discussed in detail below, after reviewing the record the Board finds the currently assigned staged ratings are appropriate for the evaluation of the Veteran's disability in this case. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C.A. § 1154(a) (West 2014); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2016). When a veteran seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Service-connected coronary artery disease, status post coronary artery bypass graft, has been rated under 38 C.F.R. § 4.104, Diagnostic Code 7005, arteriosclerotic heart disease (coronary artery disease). The Veteran was assigned an initial evaluation of 10 percent rating prior to November 8, 2012; a 30 percent evaluation from November 8, 2012 to May 18, 2016; and a 60 percent evaluation as of May 18, 2016, in accordance with Diagnostic Code 7005. Under Diagnostic Code 7005, a 10 percent rating is assigned in cases where a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where continuous medication is required. A 30 percent rating is assigned where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or with evidence of cardiac hypertrophy or dilatation on electro-cardiogram, echocardiogram, or x-ray. A 60 percent rating is assigned where there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104 (2016). A 100 percent rating is assigned when there is chronic congestive heart failure, or; 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. When evaluating disabilities of the cardiovascular system under Diagnostic Codes 7000-7007, 7011, and 7015-7020, it must be ascertained in all cases 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 (2016). METs testing is also required in all cases except: (1) when there is a medical contraindication; (2) when the left ventricular ejection fraction has been measured and is 50% or less; (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; (4) when a 100% evaluation can be assigned on another basis. Id. If left ventricular ejection fraction (LVEF) testing is not of record, the cardiovascular disability must be 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 cardiovascular disability. Id. Rating Analysis for Coronary Artery Disease prior to November 8, 2012 The Veteran contends, within February 2011 correspondence, that a higher 30 percent rating is warranted for service-connected coronary heart disease due to physical limitations after a coronary artery bypass surgery in 2008. After review of all the evidence, lay and medical, the Board finds that for the rating period prior to November 8, 2012, a rating in excess of 10 percent is not warranted for service-connected coronary heart disease, status post coronary artery bypass graft, under Diagnostic Code 7005. A December 2009 myocardial stress test reflected a global LV ejection fraction of 52%. In a September 2010 VA examination, the Veteran reported a history of dyspnea and required continuous medication for heart disease, as the Veteran had coronary artery bypass surgery in April 2008. A stress test was ordered, and in December 2010, exercise stress test results showed the Veteran had an estimated workload of 10 METs with a global ejection fraction of 52%. A September 2010 echocardiogram showed the left ventricular chamber was normal in size, with adequate wall motion, and an ejection fraction of more than 55%. The VA examiner did not note evidence of cardiac hypertrophy or dilatation on echocardiogram. The Board notes that some private treatment records dated December 2003 to 2009 were associated with the record during the rating period on appeal, which include treatment for coronary artery disease. Although these private treatment records were received during the appellate period, the Board finds that some of the private treatment records are not probative as to the disability picture for the rating period from November 13, 2009 through November 8, 2012, as they fall outside the rating period on appeal. For the entire rating period prior to November 8, 2012, the Board finds that the Veteran's service-connected coronary artery disease, status post coronary artery bypass graft, resulted in a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, with continuous medication required. A September 2010 VA examination showed the Veteran required continuous medication for his coronary artery disease, and upon a December 2012 exercise stress test, the Veteran had an estimated workload of 10 METs with reported dyspnea. A September 2010 echocardiogram did not note evidence of cardiac hypertrophy or dilatation. Therefore, the Board finds that a continued 10 percent rating is warranted for service-connected coronary artery disease, status post coronary bypass graft, for the period prior to November 8, 2012. The Board find that the next higher 30 percent rating is not warranted for coronary artery disease, status post coronary artery bypass graft, where the Veteran did not have an estimated workload of 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; and did not have a left ventricular ejection fraction of less than 30 percent. Accordingly, the Board finds that a 30 percent rating under Diagnostic Code 7005 has not been met or more nearly approximated. See 38 C.F.R. § 4.104 (2016). For these reasons, the weight of the evidence is against the claim for an initial evaluation in excess of 10 percent for service-connected coronary artery disease, status post coronary bypass graft, prior to November 8, 2012. Because a preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. Rating Analysis for Coronary Artery Disease from November 8, 2012 through May 18, 2016 In a November 2012 VA Form 9, the Veteran contends that the rating assigned for service-connected coronary artery disease did not reflect the severity of his heart disability. The Veteran indicated he had issues sleeping; was easily tired and out of breath doing yard work; couldn't help change a flat tire; or take part in his hobby of restoring old cars with his son due to his heart condition. Upon review of the lay and medical evidence of record, during the rating period from November 8, 2012 through May 18, 2016, the Board finds that an increased evaluation in excess of 30 percent is not warranted for service-connected coronary heart disease, status post coronary artery bypass graft. Private treatment records contain a November 2012 exercise stress test, which show the Veteran achieved an estimated workload of 7 METs, which was normal for the Veteran's age. The private physician noted angina, and gated SPECT images revealed normal left ventricular cavity size with an ejection fraction of 56%. Additional private treatment records show the Veteran had undergone a cardiac catheterization in November 2012, which showed normal left ventricular systolic function. The Veteran had complained of angina and left-sided chest tightness that had been going on for a while. For the entire rating period from November 8, 2012 through May 18, 2016, the Board finds that the weight of the evidence is against a disability rating in excess of 30 percent for service-connected coronary heart disease, status post coronary artery bypass graft. Private treatment records show the Veteran had an estimated workload of 7 METs with reports of fatigue and angina. Left ventricular ejection fraction was recorded at 56%. Therefore, the Board finds that the weight of the evidence for the period on appeal reflect findings consistent with a continued 30 percent rating for service-connected coronary artery disease. The Board finds that the next higher 60 percent rating is not warranted for coronary artery disease, status post coronary artery bypass graft, where the Veteran did not have acute congestive heart failure in the past year; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Accordingly, the Board finds that the next higher 60 percent rating under Diagnostic Code 7005 has not been met or more nearly approximated during the rating period from November 8, 2012 through May 18, 2016. See 38 C.F.R. § 4.104 (2016). For these reasons, the weight of the evidence is against the claim for an initial evaluation in excess of 30 percent for service-connected coronary artery disease, status post coronary bypass graft, from November 8, 2012 to May 18, 2016. Because a preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. Rating Analysis for Coronary Artery Disease as of May 18, 2016 The Veteran has generally contended, within a November 2012 VA Form 9, that the severity of his service-connected coronary artery disease is not accurately reflected in the assigned disability rating. See AB, 6 Vet. App. at 38. However, the Board finds that a rating in excess of 60 percent for service-connected coronary artery disease as of May 18, 2016 is not warranted. A May 2016 VA examination shows the Veteran required continuous medication for his heart disability. He complained dyspnea, fatigue, and dizziness and had an estimated workload of greater than 3 to 5 METs, a level consistent with activities such as light yard work, lawn mowing and brisk walking. A 2015 echocardiogram showed a left ventricular ejection fraction of 55%. The VA examiner indicated there was no evidence of cardiac hypertrophy, cardiac dilatation or congestive heart failure. The Board finds that the May 2016 VA examination reflects findings consistent with a 60 percent rating under Diagnostic Code 7005, where service-connected coronary artery disease approximated a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue and dizziness. Therefore, the Board finds that a continued 60 evaluation for service-connected coronary artery disease is warranted. The Board find that the next higher 100 percent rating is not warranted for coronary artery disease, status post coronary artery bypass graft, where the Veteran did not have evidence of chronic congestive heart failure; did not have an estimated workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; and did not have a left ventricular ejection fraction of less than 30 percent. Accordingly, the Board finds that a 100 percent rating under Diagnostic Code 7005 has not been met or more nearly approximated for the rating period as of May 18, 2016. See 38 C.F.R. § 4.104 (2016). For these reasons, the weight of the evidence is against the claim for an initial evaluation in excess of 60 percent for service-connected coronary artery disease, status post coronary bypass graft, as of May 18, 2016. Because a preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An evaluation in excess of 10 percent for service-connected coronary artery disease, status post coronary bypass graft, prior to November 8, 2010 is denied. An evaluation in excess of 30 percent for service-connected coronary artery disease, status post coronary bypass graft, from November 8, 2012 through May 18, 2016 is denied. An evaluation in excess of 60 percent for service-connected coronary artery disease, status post coronary bypass graft, as of May 18, 2016 is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs