Citation Nr: 1751810 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 10-46 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased rating in excess of 60 percent for arteriosclerotic heart disease (AHD) with angina prior to May 1, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Zi-Heng Zhu INTRODUCTION The Veteran served on active duty from November 1942 to January 1946. The Veteran died in October 2013. The appellant is the Veteran's surviving spouse, and has been accepted as the Veteran's substitute for purposes of processing this appeal to completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Appeals Management Center (AMC), on behalf of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In December 2014, the Board granted an earlier effective date of July 2, 2004, for service connection for arteriosclerotic heart disease (AHD) with angina. The Board additionally found that prior to May 1, 2007, a disability rating in excess of 60 percent was not warranted, and that a 100 percent disability rating was warranted thereafter. The portion of that decision which continued the 60 percent disability rating prior to May 1, 2007, was appealed to the United States Court of Appeals for Veterans Claims. In February 2016, the Court vacated the decision, remanding the issue back to the Board. The Board subsequently remanded the claim for further development in August 2016 to include obtaining an addendum opinion with regard to the severity of the Veteran's condition during the relative appeals period. The Board finds that development has been substantially completed, and the claim is appropriately before the Board again for appellate review. FINDINGS OF FACT Resolving reasonable doubt in favor of the claimant, prior to May 1, 2007, the Veteran's AHD has manifested a workload of one MET. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a 100 percent rating for AHD were met, prior to May 1, 2007, as of January 21, 2005, but not earlier. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R., Part 4 (2017). The rating schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). The Veteran was rated 60 percent prior to May 1, 2007, and 100 percent as of May 1, 2007 under 38 C.F.R. § 4.140, Diagnostic Code 7005. The appellate contends that the Veteran is entitled to a 100 percent rating prior to May 1, 2007, to include the entire appeals period. The Board notes that the evidence of record is at least in equipoise with regard to the severity of the disability during the relevant time period. As all reasonable doubt is resolved in favor of the Veteran, the Board must find that a rating of 100 percent for the entire claims period from January 21, 2005, is warranted. The Veteran's disability is rated under Diagnostic Code 7005, for arteriosclerotic heart disease which provides a rating of 60 percent with more than one episode of acute congestive heart failure in the past year; when workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30-50 percent. A rating of 100 percent is assigned for chronic congestive heart failure; or when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). One MET is defined as 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 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) (2017). Based on a careful review of all of the evidence, the Board finds, for the entire period prior to January 21, 2005, the relevant evidence demonstrates that the Veteran's service-connected AHD has been relatively unchanged. Here, while Board previously increased the claim as of May 1, 2007, based on private exercise test, the Board now finds, resolving reasonable doubt in favor of the claimant, that the criteria for a 100 percent rating were met for the appeal period. The Board notes that the Veteran was awarded a 100 percent rating as of May 1, 2007, solely based on the fact that the private examination exercise test found METs of only 1. Conversely, as the evidence prior to that May 1, 2007, examination, did not test for METs, the claim was assigned a 60 percent rating prior to that date. However, pursuant to the guidance of the Court, the Board finds that as a close review of the evidence during the relevant time period prior May 1, 2007, demonstrates that no exercise testing was actually conducted to determine METs. The Board acknowledges that the Veteran's condition fails to meet any other criteria to warrant a 100 percent rating, to include chronic congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent. However, those other criteria were also not met by the Veteran's condition after May 1, 2007, to include during private testing on May 1, 2007. The Board notes that a review of the record prior to May 1, 2007, generally showed that the Veteran's AHD has been manifested by left ventricular dysfunction with an ejection fraction of no less than 45 percent, as demonstrated by a March 2005 VA Echocardiogram and Doppler report. Throughout this period, the Veteran had complained of exertional chest pain with dyspnea upon exercise. His condition was found to be stable angina syndrome and effectively treated with rest and nitroglycerin in VA treatment records. An August 2005 VA treatment record, which noted the Veteran's left ventricular ejection fraction result was 45 percent, also noted that he had a mildly impaired left ventricular function and mild and infrequent anginal syndrome. Finally, the medical evidence does not show any finding of chronic congestive heart failure. However, a close review of the May 1, 2007 private examination shows that the Veteran's AHD manifested in a similar fashion, with the exception of an exercise test. In the May 1, 2007, private examination report, and those subsequent to that report, the examiners reported no evidence of chronic congestive heart failure, and generally left ventricular ejection fraction at 54 percent. Therefore, the Board notes that the only difference between these staged periods is the fact that the May 1, 2007, and subsequent examinations, conducted exercise testing, which demonstrated a workload of only one MET, warranting a 100 percent rating. Consequently, the Board find that the evidence does not demonstrate that the Veteran's condition had changed prior to and after May 1, 2007, and that the lack of exercise testing is not dispositive of a lower rating for the entire period in light of the fact that other factors reveals a consistent condition throughout the claims period. Therefore, the Board finds that the evidence is at least in equipoise with regard to the consistency of the severity of AHD throughout the claims period, and accordingly, the Veteran's 100 percent disability rating for his AHD must be granted effective January 21, 2005, the date the claim began. The evidence does not show change in the year prior to that date of claim that would warrant any earlier effective date. Accordingly, the Board finds that a 100 percent rating for AHD with angina should be assigned effective January 21, 2005. However, the Board finds that the preponderance of the evidence is against the assignment of any earlier effective date. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to a rating of 100 percent for AHD with angina as of January 21, 2005, but not earlier, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs