Citation Nr: 1753424 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 11-32 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent prior to November 20, 2014 for arteriosclerotic heart disease (previously stated as coronary artery disease, status post coronary artery bypass graft) (hereinafter "cardiovascular disability"). 2. Entitlement to a disability rating in excess of 60 percent from November 20, 2014 for a cardiovascular disability. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to November 20, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1970 and from May 1971 to December 1971, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, which, in part, continued a 30 percent rating for coronary artery disease status post coronary artery bypass and denied entitlement to a TDIU. In September 2014 and April 2017, the Board remanded the case for further development of the record, including obtaining outstanding records and VA examinations and medical opinions. There has been substantial compliance with the requested development. Stegall v. West, 11 Vet. App. 268 (1998); see Dyment v. West, 13 Vet. App. 141 (1999). In a February 2015 rating decision, the RO granted an increased rating of 60 percent for the Veteran's cardiovascular disability, effective November 20, 2014. In a June 2017 rating decision, the RO granted entitlement to TDIU effective November 20, 2014. As these grants do not represent a maximum grant of benefits sought on appeal, the claims remain before the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. The issues of entitlement to a disability rating in excess of 60 percent from November 20, 2014 for a cardiovascular disability and entitlement to TDIU prior to November 20, 2014, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's cardiovascular disability prior to November 2014 was manifested by a workload greater than 5 METs with dyspnea and fatigue, and an ejection fraction of greater than 50 percent, with some evidence of cardiac hypertrophy or dilation. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent prior to November 20, 2014 for a cardiovascular disability have not been met. 38 U.S.C.A. §§ 1101, 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.21, 4.27, 4.3, 4.104, Diagnostic Code 7017 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5103, 5013A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of the claims at issue by notice letters dated in February and November 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also provides that VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R § 3.159(c). Here, the Veteran's service records, VA records, private treatment records identified by the Veteran, and Social Security Administration records have been obtained and associated with the claims file. The Veteran was afforded a VA examination in March 2010 and April 2011. The examinations are of record. To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination reports reflect that relevant records were reviewed and the examiner personally interviewed and examined the Veteran, including eliciting a history from him, and offered opinions. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Laws and Regulations - Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran's cardiovascular disability is rated at 30 percent prior to November 20, 2014 under 38 C.F.R. § 4.104, Diagnostic Code 7017 and at 60 percent thereafter under Diagnostic Code 7005. As discussed below, further development is required to determine whether a higher rating is warranted for the Veteran's cardiovascular disability from November 20, 2014. Therefore, the Board is only considering herein whether a rating in excess of 30 percent is warranted prior to November 20, 2014. DC 7017 pertains to coronary bypass surgery. Under DC 7017, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. 38 C.F.R. § 4.104. A 30 percent rating is warranted where 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 dilation on EKG, ECG, or x-ray. A 60 percent rating is warranted where there has been 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. A 100 percent rating is warranted for (1) 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. A 100 percent rating is also warranted for three months following hospital admission for surgery. 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 (2017). 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. The Veteran contends that a rating in excess of 30 percent is warranted for his service-connected cardiovascular disability prior to November 20, 2014. Prior to the Veteran's claim in January 2010, he reported that he felt well and denied chest pains, cough, or shortness of breath. See July 2007, August 2008, August 2009, and January 2010 VA treatment records. The Veteran was afforded a VA examination in March 2010. An x-ray associated with the examination showed a normal sized heart with no evidence of active cardiac or pulmonary disease; however, arteriosclerotic changes of the aorta were noted. The Veteran's reported METs were in the 5 to 6 range, with the Veteran stating that he could go up and down stairs, walk a block, shovel snow for 10 minutes, and carry greater than 50 pounds. An echocardiogram associated with the examination revealed normal left ventricle size and function, with ejection fraction at 50 to 55 percent. Mild right ventricle enlargement with normal function and mild enlargement of the right and left atrium were noted, although there was no left ventricle hypertrophy. The Veteran reported not working due to the economy slowing down and not being able to find work or jobs. The examiner noted that the Veteran had known 3-vessel coronary artery disease post coronary bypass, which was consistent with ischemic heart disease. However, the examiner noted that the Veteran was asymptomatic and stable at the time of the examination. In July 2010, the Veteran denied chest pains, but reported shortness of breath and continuing weakness. He reported trying numerous times to find a job and filling out applications, but that no one would hire him due to his medical background. See July 2010 Social Security Administration records. VA treatment records reflect that the Veteran continued to deny chest pains and denied shortness of breath. See July 2010 and April 2011 VA treatment records. An April 2011 VA examination report reflect that the Veteran denied chest pain but reported generalized fatigue which had been worsening over the prior year. He reported shortness of breath when carrying tools or compressors, but could walk around a store and go up one to two flights of stairs. In general, he was able to do light chores, such as move light furniture and "putter" around the house, but fatigued easily. He did not do outside chores due to fatigue. Estimated METs were assessed at >5 to 7. A February 2012 myoview regadenoson rest/stress test performed after the Veteran reported intermittent chest pain revealed an ejection fraction of 53 percent. The Veteran was unable to complete exercise portion of the test due to dyspnea, reaching only Stage 1. See February 2012 Virtual VA CAPRI records. In July 2013, the Veteran reported typical daily activities of walking his dog around the block twice a day for five to six minutes and working on projects such as repairing fences and working on cars. Prior to November 2014, the Veteran's cardiovascular disability is evaluated as 30 percent disabling under DC 7017. The Veteran's cardiovascular disability prior to November 2014 was manifested by a workload greater than 5 METs with dyspnea and fatigue, an ejection fraction of greater than 50 percent, with some evidence of cardiac hypertrophy or dilation, which is more closely approximated by a 30 percent rating. The Board finds that a higher rating is not warranted. The medical evidence of record from one year prior to the Veteran's claim in January 2010 through October 2014 does not demonstrate that the Veteran had more than one episode of acute congestive heart failure; a workload of 5 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or an ejection fraction of 50 percent or less. In sum, the Board finds that for the reasons and bases discussed, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent prior to November 20, 2014 for his cardiovascular disability. There is no reasonable doubt to resolve in the Veteran's favor, and this claim must be denied. 38 C.F.R. § 4.3, 4.7 (2017). ORDER Entitlement to an disability rating in excess of 30 percent prior to November 20, 2014 for arteriosclerotic heart disease (previously stated as coronary artery disease, status post coronary artery bypass graft), is denied. REMAND Cardiovascular disability The Veteran contends that a rating in excess of 60 percent after November 20, 2014 is warranted for his cardiovascular disability. A June 2017 supplemental statement of the case (SSOC) reflects that VA treatment records up through and including June 2017 were reviewed during the adjudication of the Veteran's claim. The latest VA treatment records associated with the Veteran's electronic claims file are dated in in October 2014. As the treatment records since October 2014 have not been associated with the Veteran's electronic claims file, the Board is not able to view the documents as part of the record on appeal. Therefore, the Board finds that a remand is warranted so that any outstanding VA treatment records and private treatment records identified by the Veteran can be associated with the Veteran's electronic claims file. If additional records are located and reflect that the severity of the Veteran's cardiovascular disability is worsening, a new VA examination should be obtained to ascertain the severity of the Veteran's cardiovascular disability. TDIU The Veteran contends that he is entitled to a TDIU. As noted above, the RO granted TDIU in June 2017 with an effective date of November 20, 2014. Thus, the time period in question is prior to November 20, 2014. This issue is intertwined with the heart claim and thus must also be remanded. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's electronic claims file any outstanding VA treatment records and any private treatment records identified by the Veteran. The most recent VA treatment records associated with the Veteran's electronic claims file are dated in October 2014. If additional records are located and reflect that the severity of the Veteran's cardiovascular disability is worsening, a new VA examination should be obtained to ascertain the severity of the Veteran's cardiovascular disability. 2. Afford the Veteran a VA heart examination. All necessary tests should be performed and all findings should be included in the examination report. 3. Then the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs