Citation Nr: 1751314 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-18 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to a higher initial rating for coronary artery disease (CAD), currently rated 30 percent disabling. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for coronary artery disease with an evaluation of 10 percent, effective May 10, 2010. The Veteran requested a hearing before the Board, but withdrew this request in a statement received by VA in March 2015. In August 2015, the AOJ granted an increase rating of 30 percent, effective May 8, 2012. As this was not a full grant of the benefit sought, the issue remains on appeal. Subsequently, in November 2016, the AOJ awarded an earlier effective date of May 10, 2010 for the 30 percent evaluation. The Veteran has raised the issue of entitlement to a TDIU due in part to his heart disability during the course of the appeal period, to include in correspondence received in May 2013 and years prior. As such the issue is considered part and parcel with the Veteran's pending claim for a higher disability rating for his heart disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT During the appeal period, the Veteran showed 5.3 MET capacity attributable to coronary artery disease; he had a left ventricular ejection fraction ranging from 61-69 percent and; has never had congestive heart failure. CONCLUSION OF LAW The criteria for an increase rating for coronary artery disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by evaluating the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1 (2016). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. 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 evaluation will be assigned. 38 C.F.R. § 4.7. 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). 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 Veteran. 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. 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 of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Notably, "staged" ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is assigned a 30 percent disability rating under Diagnostic Code (DC) 7005, coronary artery disease. Under DC 7005, a 30 percent rating is assigned when a workload of greater than 5 metabolic equivalent of task (METs) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. C.F.R. § 4.104 (2017). A 60 percent rating is assigned when there is 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 of 30 to 50 percent. Id. 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. Id. One MET (metabolic equivalent) 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 (2016). At a July 2010 VA examination, the examiner diagnosed the Veteran with CAD, and noted his continued use of medication. The examiner indicated that the Veteran was able to do self-activities of daily living, he was able to stand for washing, shaving, dressing and undressing, he was able to walk maybe two miles per hour, and that he admitted to riding a lawnmower and fly fishing. Stress testing revealed that he was able to reach 10.4 METs. In March 2011, the Veteran submitted a notice of disagreement noting the July 2010 VA examination provided false statements. He contended that he did not state in the examination that he could ride a lawnmower or complete self-activities of daily living. He indicated that the last time he was able to complete activities of daily living on his own was in June 2010. The RO scheduled the Veteran for another examination in May 2012. On the corresponding report, the May 2012 examiner noted that the Veteran reached 5.3 METs and experienced symptoms of dizziness and dyspnea. The examiner confirmed his CAD diagnosis, and noted his continued use of medication. In an August 2012 stress test conducted by a VA medical center, the Veteran's images demonstrated mild septal hypokinesis with a post stress ejection fraction (EF) of greater than 70 percent. The resting EF was at 69 percent. In a March 2013 VA examination, the examiner diagnosed CAD, based on percutaneous coronary intervention in November 2009 and the Veteran's medical history. The examiner noted continuous medication was required for control of the heart condition, but he did not have congestive heart failure. There was no evidence of cardiac hypertrophy or dilatation. A diagnostic exercise test was conducted and the Veteran was able to perform to a level of 5.3 METs. The test was discontinued due to dizziness after 5+ minutes. A September 2016 VA oncology medical record, referenced again in October 2016 notes a left ventricular ejection fraction of 61 percent, with normal wall thickness, normal chamber sizes and normal wall motion. Although left ventricular ejection fraction (LVEF) testing was not conducted in all the above-noted examinations, such testing is not necessary under 38 C.F.R. § 4.100, unless the examiner says LVEF is needed because the information does not reflect the severity of the disability. See 38 C.F.R. § 4.100(c). Such is not the case here. It is clear that the Veteran's overall health has deteriorated over the course of this appeal, as noted in his lay statements and medical records. However, his lay assertions do not show that the 60 percent criteria, or higher, are met for CAD. The criteria that are based upon METs and left ventricular ejection fraction require specific medical testing. Additionally, the Veteran in this case is not competent to diagnose congestive heart failure. Kahana v. Shinseki, 24 Vet. App. 428, 433 n.4 (2011). The May 2012, March 2013 and September 2016 VA examiners and physicians provided adequate medical evaluations, and described the disability in sufficient detail so that the Board's evaluation is fully informed. Although the Veteran's representative has generally indicated that the Veteran's disability has worsened [see the January 2017 VA Form 646], neither the Veteran nor his representative has indicated in what specific way his disability has worsened, nor have they submitted medical evidence suggestive of worsening that would call into question the findings of the examiners and physicians cited above. Although Social Security Administration (SSA) submitted private medical records from October 2009, noting an ejection fraction of 38 percent, this reading was conducted before the date of claim (May 10, 2010). Additionally, after he received heart stents, a November 2009 heart catheterization testing showed an ejection fraction of 65 percent, which resulted in improvement of cardiac functioning. As noted above, all subsequent ejection fraction test results have been above 60 percent. Therefore, the October 2009 stress test results cannot be used to support a 60 percent evaluation. To the extent the Veteran argued in his June 2011 VA Form 9 that a 100 percent rating is warranted under a former version of 38 C.F.R. § 4.104 and Diagnostic Code 7005, such criteria are not for application. Indeed, the current criteria described above have been in effect for the entirety of the appeal period under review. For these reasons, the Board finds that the overall disability picture for the Veteran's CAD is not more closely approximated by an increase to a 60 percent disability rating under Diagnostic Code 7005, but the Veteran's disability picture more closely approximates the current evaluation of 30 percent. 38 C.F.R. § 4.7 (2017). Therefore, the preponderance of the evidence is against this claim, and it must be denied. 38 C.F.R. § 4.3 (2017). ORDER An initial rating greater than 30 percent for coronary artery disease is denied. REMAND As noted in the Introduction above, the Veteran has raised the issue of entitlement to TDIU as part of his initial rating claim for CAD. See a May 2013 Statement in Support of Claim (indicating he cannot work due, in part, to his heart disability). Since the RO last addressed potential entitlement to TDIU in an April 2012 rating decision, the Veteran has submitted additional argument on the matter, has been awarded service-connection for additional disabilities, and his individual and combined disability ratings during the period under review dating back to May 2010 have changed. Additional medical evidence has also been added to the file. On remand, the AOJ should readjudicate the issue of entitlement to TDIU, with consideration of all new evidence submitted in the first instance. The Board recognizes that the Veteran is already in receipt of a 100 percent rating, with special monthly compensation effective March 23, 2013. However, the Veteran's initial rating claim for CAD stems from his original claim filed on May 10, 2010, and the Veteran's TDIU claim is part and parcel of this claim. Therefore, even if a TDIU award is rendered moot from March 23, 2013 forward, the questions of whether a TDIU can be awarded prior to that date should be adjudicated by the AOJ on remand. Accordingly, the case is REMANDED for the following action: Readjudicate the claim for a TDIU, considering all evidence. If the benefit sought remains denied, the Veteran should be provided a supplemental statement of the case. An appropriate period of time should be allowed for a response. The Veteran has the right to submit additional evidence and argument on the matter 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). ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs