Citation Nr: 1753021 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-16 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial disability rating for ischemic heart disease (IHD) in excess of 10 percent prior to August 9, 2017; and in excess of 30 percent on or after August 9, 2017 (excluding a period of temporary total rating from April 15, 2011 to April 30, 2011). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from February 1968 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2016. A transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder. In a June 2017 decision, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board finds that the RO substantially complied with the June 2017 remand directives, to the extent possible, and no further action in this regard is warranted. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (concluding that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with the Board's remand instructions). The November 2011 rating decision granted entitlement to service connection for IHD and assigned a temporary 100 percent evaluation effective from April 15, 2011 to April 30, 2011; and 10 percent evaluation effective from May 1, 2011. A subsequent August 2017 Decision Review Officer (DRO) decision increased the disability rating to 30 percent effective from August 9, 2017. With the exception of the temporary 100 percent rating, the assigned evaluations are less than the maximum available rating. Thus, the Veteran continued his appeal for a higher rating. See AB v. Brown, 6 Vet. App. 36, 38 (1993). FINDINGS OF FACT 1. Prior to May 20, 2015, the Veteran's IHD has been productive of a workload of 7.3 METs; but not a workload of greater than 5 METs but not greater than 7 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on EKG, echocardiogram, or X-ray. 2. On and after May 20, 2015, the Veteran's IHD has been productive of a workload greater than 5 METs, but not greater than 7 METs; but not 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 that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent CONCLUSIONS OF LAW 1. Prior to May 20, 2015, and excluding a period of temporary total rating from April 15, 2011 to April 30, 2011, the rating criteria for an initial evaluation in excess of 10 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.104, Diagnostic Code 7005-7017 (2017). 2. From May 20, 2015 to August 8, 2017, the rating criteria for an initial evaluation of 30 percent for IHD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.104, Diagnostic Code 7005-7017 (2017). 3. On and after August 9, 2017, the rating criteria for an initial evaluation in excess of 30 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.104, Diagnostic Code 7005-7017 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any 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 a duty to assist argument). II. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, 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. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's IHD is currently evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7005-7017. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, Diagnostic Code 7005 refers to arteriosclerotic heart disease (coronary artery disease (CAD)), while Diagnostic Code 7017 refers to coronary bypass surgery. Under both Diagnostic Code 7005 and Diagnostic Code 7017, a 10 percent evaluation is warranted when a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent rating is awarded when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram (EKG), echocardiogram, or X-ray. A 60 percent rating is assigned 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 that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 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. Diagnostic Code 7017 also provides for a 100 percent evaluation for 3 months following hospital admission for coronary bypass surgery. 38 C.F.R. § 4.104, Diagnostic Code 7017. For rating diseases of the heart, one MET 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 rating, 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, Note 2. In a May 2011 statement, the Veteran reported that he underwent surgery in February 2011 for CAD. A subsequent May 18, 2011 record from Savannah Vascular and Cardiac Institute reported that the Veteran had a coronary artery bypass graft (CABG) times two on January 28, 2011. The record noted the Veteran's complaint of a knot in his upper chest incision. He did not have chest pain or shortness of breath. His sternum was stable, and he had a regular heart rate and rhythm. He did have pain on the plate 4 sternum. The record indicated that the plate could be removed, but the Veteran did not know if he wanted to proceed with the surgery. On May 23, 2011, Dr. H. completed a Disability Benefits Questionnaire (DBQ) for the Veteran's IHD. The diagnoses were CAD and CABG. Dr. H. reported that the Veteran was taking continuous medication for his heart disability; including Crestor, aspirin, Lantus, and NovoLog. Dr. H. noted the Veteran's history of a coronary bypass surgery in January 2011. The Veteran did not have a history of percutaneous coronary intervention, myocardial infarction, heart transplant, implanted cardiac pacemaker, or implanted automatic implantable. Dr. H. additionally determined that the Veteran did not have congestive heart failure. Diagnostic exercise testing from January 2011 showed a workload of 7.3 METs. There was no evidence of cardiac hypertrophy or dilatation. The Veteran's left ventricular ejection fraction (LVEF) was measured in January 2011 to be 64 percent. Dr. H. noted that there was continuing improvement in the Veteran's functional ability after the CABG. In a subsequent May 26, 2011 VA examination related to diabetes, the examiner noted that the Veteran's cardiac history included hypertensive heart disease, angina, and hypertension. He did not have a history of myocardial infarction; rheumatic fever; valvular heart disease, including prosthetic valve; congestive heart failure; or other heart disease. In addition, there was no history of dizziness, syncope, fatigue, or dyspnea. In July 2011, Dr. H. completed an additional DBQ to evaluate the Veteran's IHD. The diagnoses were unchanged. The Veteran still took continuous medication. He had added nitroglycerin sublingual to his regimen, and aspirin had been replaced by soma compound with codeine. There had not been any changes in the previously documented history, and Dr. H. stated that the Veteran still did not have congestive heart failure. In terms of diagnostic testing, Dr. H. again reported the January 2011 results of 7.3 METs and a 64 percent LVEF. There continued to be no evidence of cardiac hypertrophy or dilatation. Dr. H. noted that functional testing had not been performed since the Veteran's CABG. In December 2011, a VA treatment record reported that an examination of the Veteran's cardiovascular functioning showed normal heart sounds and a normal sinus rhythm. The record stated that the Veteran had well-healed midsternal surgical scar from his CABG. The Veteran denied having chest pain, palpitations, or orthopnea. In August 2012, a VA treatment record noted that there were no problems identified regarding the Veteran's heart. In September 2013, a Savannah Surgery Center record noted under a review of the Veteran's cardiovascular system that he denied having symptoms of chest pain or syncope. The examination showed that the Veteran's heart had a regular rate and rhythm. In February 2014, the Veteran denied having chest pain, cardiac murmurs, irregular heartbeats, or dyspnea on exertion. The heart had a regular rate and rhythm upon examination. The assessment was hypertensive heart disease without heart failure. In an August 2014 VA treatment record, the Veteran reported that he had been seen in his local emergency room for left chest pain, but he was cleared of any acute cardiovascular event. In October 2014, the Veteran complained of pain in the right side of his chest, lateral to sternum. The record stated he was told that there could be an issue with his sternotomy. A chest x-ray report stated that the Veteran's heart size, vascular markings, and mediastinal structures were normal. The impression noted that no acute disease could be seen in the chest. During the December 2016 Board hearing, the Veteran testified that as a result of his heart disability, he tried not to overexert himself. See December 2016 Board Hearing Transcript (Tr.), page 7-8. He cooked for himself and kept his yard clean by picking up trash, but he indicated that he hired others to perform more physically demanding tasks. A VA examination concerning the Veteran's IHD was conducted in August 2017. The diagnoses were atherosclerotic cardiovascular disease and CABG. The Veteran reported that he experienced chest pain and shortness of breath before his January 2011 CABG. The Veteran was discharged from the surgery with no complications, and he went to rehabilitation. Although his angina pain went away, he had soreness on the right side of his chest; and he experienced pain upon twisting. The Veteran reported that he had chest pain and had a stress test performed at the emergency room. However, his outside cardiologist told him that the results were normal. The Veteran stated that he tried to stay active, but he tired easily. The Veteran still required continuous medication for control of his heart disability. His current medication included aspirin and atorvastatin. Despite the medication list noted in the July 2011 DBQ, the Veteran reported that he had not taken nitroglycerin. Similar to previous reports, the examiner noted that the Veteran had not experienced myocardial infarction; congestive heart failure; cardiac arrhythmia; a heart valve condition; or any infectious cardiac conditions, including active valvular infection (including rheumatic heart disease), endocarditis, pericarditis, or syphilitic heart disease. No pericardial adhesions were present. The physical examination revealed that the Veteran had a regular heart rhythm, normal heart sounds, a heart rate of 76 beats per minute, and blood pressure of 132/77. The point of maximal impact was not palpable, and there was no jugular-venous distention. Auscultation of the lungs was also clear. The peripheral pulses were normal, and no peripheral edema was present. There was no evidence of cardiac hypertrophy or dilatation. The examiner added that the Veteran had a scar related to his heart disability. In terms of diagnostic testing, an August 2017 echocardiogram showed that the Veteran had normal wall motion, normal wall thickness, and an LVEF of 60 percent. A May 20, 2015 exercise stress test showed normal function, no evidence of ischemia, a fair exercise tolerance, and a METs level of 6. During the interview-based METs test, the Veteran reported experiencing dyspnea at the level of 5 to 7 METs. The examination report stated that this METs level was consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), and heavy yard work (digging). The examiner noted that when compared to the exercise stress test, the interview-based METs test most accurately reflected the Veteran's current cardiac functional level. The Veteran's METs limitation was due solely to his heart disability. After considering whether the Veteran is entitled to an initial evaluation in excess of 10 percent for IHD prior August 9, 2017, the Board finds that the Veteran should be awarded a 30 percent disability rating effective from May 20, 2015. Before this date, an evaluation in excess of 10 percent is not warranted. The May 2011 and July 2011 DBQs from Dr. H. reflect that the Veteran's IHD resulted in a workload greater than 7 METs. In addition, there was no evidence of cardiac hypertrophy or dilation on EKG, echocardiogram, or x-ray. Consequently, a 30 percent evaluation is not appropriate before May 20, 2017. On May 20, 2015, the Veteran's exercise stress test yielded a result of 6 METs. Under Diagnostic Code 7005 and 7017, this value warrants an evaluation of 30 percent. However, the evidence of record does not show that the Veteran should be provided with a disability rating greater than 30 percent on or after May 20, 2015. Neither the August 2017 VA examination report nor the other evidence of record suggests that the Veteran had a workload greater than 3 METs, but not greater than 5 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope. The Board notes that the Veteran indicated during the December 2016 hearing that he avoided physically taxing activities. However, the Board finds that the August 2017 VA examiner's determination of the Veteran's METs level, based on his interview of the Veteran and medical expertise, provides a more specific understanding of the Veteran's cardiac functional level. In addition, while the interview-based METs test was determined by the examiner to better reflect the Veteran's functional status than the May 20, 2015 exercise stress test at the time of the examination, the Board notes that both results fall within the range contemplated by a 30 percent rating. Thus, the examiner's determination is consistent with the objective test results of record. In addition, the LVEF reported by the August 2017 VA examiner was greater than 50 percent. The Veteran also has not reported, and the evidence does not otherwise reflect, that he experienced congestive heart failure. In light of this evidence, the Veteran's symptoms on and after May 20, 2015 are best reflected by a 30 percent disability rating. In reaching these conclusions, the Board has considered the Veteran's contention that he did not perform the January 2011 exercise test correctly. See December 2016 Tr., page 4-5. In response to this assertion, the Board obtained an opinion from the August 2017 VA examiner regarding the severity of the Veteran's heart disability during the appeal period. The examiner stated that his review of the evidence of record did not show evidence of changes in the severity of the Veteran's heart disease. The examiner noted that VA's Computerized Patient Record System (CPRS) did not contain documentation of heart symptoms, and outside records were notable for the negative stress echocardiogram discussed in the examination report. The Board has considered the Veteran's statements and finds that he is competent to report as to observable symptomatology, such as symptoms of dizziness during a stress test. However, as to the question of the severity of the Veteran's IHD during the appeal period, even assuming that he is competent to opine on this medical matter, the Board finds that the VA examiner's opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and is supported by rationale based on such knowledge. The examiner also reviewed the claims file and considered the Veteran's lay statements, and his opinion is consistent with the other medical evidence of record. The Board also notes that the Veteran's surgical scar from his CABG was discussed during the appeal period. However, the August 2017 DRO decision already granted entitlement to service connection for a surgical scar associated with IHD, and the Veteran has not appealed the scar's assigned disability rating. Thus, consideration of that issue is not before the Board at this time. In summary, the Board finds that the Veteran should be awarded a 30 percent disability rating, but no higher, for his IHD from May 20, 2015 to August 8, 2017. However, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for IHD prior to May 20, 2015; and in excess of 30 percent on or after August 9, 2015. Although the Board has considered the applicability of the benefit of the doubt doctrine, that doctrine is not applicable based on these facts. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Prior to May 20, 2015, and excluding a period of temporary total rating from April 15, 2011 to April 30, 2011, entitlement to an initial evaluation in excess of 10 percent for IHD is denied. From May 20, 2015 to August 9 2017, entitlement to an initial evaluation of 30 percent for IHD is granted. On and after August 9, 2017, entitlement to an initial evaluation in excess of 30 percent for IHD is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs