Citation Nr: 1754723 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-04 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for coronary artery disease status post coronary artery bypass graft and myocardial infarction (hereafter CAD) prior to December 27, 2010. 2. Entitlement to an initial evaluation in excess of 60 percent for CAD for the period of December 27, 2010, to August 29, 2011. 3. Entitlement to an initial evaluation in excess of 60 percent for CAD beginning November 1, 2011. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active military service from May 1967 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) from the November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This matter was previously before the Board in June 2017 and was remanded for further development. FINDINGS OF FACT 1. Prior to December 27, 2010, the Veteran had a workload of greater than 5 METs but not greater than 7 METs that resulted in fatigue. 2. Between December 27, 2010, to August 29, 2011, the Veteran had a workload of greater than 3 METs but not greater than 5 METs that resulted in fatigue. 3. Beginning November 1, 2011, the Veteran had a workload of greater than 3 METs but not greater than 5 METs that resulted in fatigue. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for CAD prior to December 27, 2010, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4 104 (Diagnostic Code 7005) (2017). 2. The criteria for a rating in excess of 60 percent for CAD, for the period of December 27, 2010, to August 29, 2011, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.104 (Diagnostic Code 7005) (2017). 3. The criteria for a rating in excess of 60 percent for CAD beginning November 1, 2011, have not been met. 38 U.S.C.§§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.104 (Diagnostic Code 7011) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's appeal for an increased initial rating for CAD arises from his disagreement with the initial rating awarded following the grant of service connection for that disability. Where the initial claim is one for service connection, once service connection has been granted, the claim has been substantiated. Therefore, the initial intended purpose of the notice has been fulfilled and additional VCAA notice under § 5103(a) is not required. Any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, once a notice of disagreement has been filed, for example, contesting a downstream issue such as the initial rating assigned to the disability, only the notice requirements for a rating decision and Statement of the Case described in 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision. 38 C.F.R. § 3.159(b)(3). Here, the RO provided the Veteran the required Statement of the Case in November 2013. The Statement of the Case cites the applicable statutes and regulations pertaining to his claim. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Several VA examinations have been secured in connection with the current claim. Taken together, the Veteran's examinations are adequate; the VA examiners considered the entire record, noted the history of the disabilities, addressed relevant evidence, and provided the medical information necessary to reach a decision. VA's duty to assist with respect to obtaining a VA examination has therefore been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Compliance with Prior Board Remands The Board observes that this case was previously remanded by the Board in April 2017. The purpose of this remand was to obtain outstanding treatment records. Upon remand, these records were obtained. The Board therefore finds that there was substantial compliance with the prior remand order, as is discussed more fully below, and the Board may continue with its determination. Stegall v. West, 11 Vet. App. 268 (1998). III. Legal Criteria for Increased Ratings Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disabilities 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; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 199 (1999). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. IV. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran was initially rated at 30 percent under diagnostic code 7005, arteriosclerotic heart disease (coronary artery disease). 38 C.F.R. § 4.104. On December 27, 2010, the Veteran's rating was increased to 60 percent, due to a finding of a workload of 5-7 METs and the requirement that the Veteran take continuous medication for his coronary artery disease. In August 2011, the Veteran had a pacemaker put in, and was his rating was increased to 100 percent under diagnostic code 7011, ventricular arrhythmias (sustained), from the date he received the pacemaker, August 30, 2011, to two months after the surgery, October 31, 2011. 38 C.F.R. § 4.104. From November 1, 2011 to January 21, 2013, the Veteran was given a 10 percent rating under diagnostic code 7011, and the RO stated this was done because it was the minimum rating that could be given following the placement of a pacemaker. However, in June 2017, the Board increased the Veteran's rating from 10 percent to 60 percent for the period of November 1, 2011 to January 21, 2013. At his examination in January 2013, the Veteran was found to have a workload of 3-5 METs and was awarded a 60 percent rating under DC 7011, with an effective date of January 21, 2013. For rating diseases of the heart, one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen intake 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. Diagnostic code 7005 refers to arteriosclerotic heart disease (coronary artery disease). 38 C.F.R. § 4.104. Under this diagnostic code, a 30 percent rating is warranted 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, echocardiogram, or X-ray. A 60 percent rating is warranted for 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 30-50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. Diagnostic code 7011 refers to ventricular arrhythmias (sustained). 38 C.F.R. § 4.104. A 10 percent rating is assigned when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. A 30 percent rating is assigned 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, echocardiogram, or X-ray. A 60 percent rating is warranted when there is 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 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; or with an automatic implantable Cardioverter-Defibrillator (AICD) in place. 38 C.F.R. § 4.104. Prior to December 27, 2010 The Veteran's CAD is evaluated as 30 percent disabling under diagnostic code 7005 prior to December 27, 2010. In August 2010, the Veteran underwent a VA examination. The examiner noted that the Veteran had a positive history of myocardial infarction, hypertension, valvular heart disease including prosthetic valve, dizziness, fatigue, and dyspnea. Additionally, it was noted that continuous medication was required for the Veteran's heart disease. The examiner noted that the Veteran did not have a history of rheumatic fever, hypertensive heart disease, heart rhythm disturbance, congestive heart failure, other heart disease, angina, or syncope. Additionally, there was no evidence of congestive heart failure. The Veteran reported that he gets tired and out of breath with exertion and is generally "slowing down." The Veteran was able to tolerate a workload of 7 to 9 METs and demonstrated a good exercise tolerance. The examiner stated that there were no effects on usual occupation that resulted in work problems and noted that the Veteran had a desk job. However, the examiner stated that the Veteran experienced effects on his usual daily activities as his CAD has "slowed him down." A September 2010 VA treatment note stated that the Veteran does have a decrease in the activity tolerance in the last four years and has an angina or equivalents. The Veteran noted that he has to stop activities due to his angina or equivalent. The Board finds that a rating in excess of 30 percent prior to December 27, 2010 is not warranted. Specifically, the Board notes that the Veteran's August 2010 examination revealed that prior to December 2010, the Veteran's CAD warranted a 10 percent evaluation under diagnostic code 7005 as the Veteran had a workload of greater than 7 METs, but not greater than 10 METs and required continuous medication. However, the Board will not disturb the Veteran's current rating of 30 percent prior to December 27, 2010. A higher rating of 60 percent is not warranted as the evidence of record does not demonstrate that the Veteran has had more than one episode of acute congestive heart failure in the past year, 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 30-50 percent. December 27, 2010 to August 28, 2011 The Veteran's CAD is evaluated as 60 percent disabling under diagnostic code 7005 for the period of December 27, 2010 to August 28, 2011. In December 2010, the Veteran underwent a VA examination. The Veteran stated that he was short winded when "doing something, toting something or picking up something." He also stated that when moving wood in a wheelbarrow he would become short winded. The Veteran stated that he gets angina and it was noted that the Veteran takes continuous medication for control of his heart disease. The Veteran's pulmonary history was positive for dyspnea on mild exertion. The Veteran's stress test revealed estimated METs of 5 to 7, based on the Veteran's report of dyspnea and angina with pushing a wheelbarrow 30 yards. The examiner noted that there are no effects of the Veteran's usual occupation, but that he has a decrease in his usual daily activities due to his CAD. A June 2011 echocardiogram showed inferobasal, inferoseptal hypokinesis with overall low normal LVEF of 50 percent. Mild congestive heart failure, mild aortic root dilation, aortic root sclerosis, and aortic valve sclerosis were noted. However, no stenosis was present. A June 2011 treatment note stated that the Veteran was a little bit weak, known to be anemic on iron and is dizzy when bending over and quite bradycardic at the time of the visit. Additionally, it was noted that the Veteran would become short of breath with exertion when walking, but no heaviness, pressure, or tightness was present. All other symptoms were negative. An August 2011 treatment note stated that the Veteran's most recent echocardiogram showed ejection fraction of approximately 50 to 55 percent with inferior scar. The Veteran denied any chest discomfort, lightheadedness, dizziness, or syncope. The Board finds that a rating in excess of 60 percent for the period of December 27, 2010 to August 28, 2011 is not warranted. Specifically, the Veteran's December 2010 VA examination revealed the Veteran's workload of 5 to 7 METs, thereby warranting a 30 percent rating. However, the Board will not disturb the Veteran's current rating of 60 percent for the period of December 27, 2010 to August 28, 2011. A higher rating of 100 percent is not warranted as the evidence of record does not demonstrate that the Veteran has chronic congestive heart failure, workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. The Board notes that the Veteran is currently in receipt of a 100 percent evaluation for his CAD for the period of August 29, 2011 to November 1, 2011. November 1, 2011 to Present The Veteran's CAD is evaluated as 60 percent disabling under diagnostic code 7011 beginning November 1, 2011. In January 2013, the Veteran underwent a VA examination. The examiner noted that the Veteran does not have congestive heart failure. The Veteran reported dyspnea and fatigue at 3-5 METs. This METs level has been found to be consistent with activities such as light yard work, mowing lawn, and brisk walking. The examiner concluded that the Veteran's CAD does not impact his ability to work. In May 2016, the Veteran underwent a VA examination. The Veteran reported that he walks approximately half a mile every day but has problems with breathing due to his lungs (he has a history of COPD). Additionally, the Veteran stated that he used to play golf but cannot anymore due to his shoulder problems. The Veteran denied chest pain on exertion. The Board notes that the examiner stated that the Veteran's previous private echocardiograms were not available for review. However, the Board finds this is not prejudicial to the Veteran as any previous echocardiograms would have no bearing on the examiner's current stress testing of the Veteran. The examiner noted that continuous medication is required for control of the Veteran's CAD. However, no congestive heart failure, arrhythmia, heart valve condition, infectious heart condition, or pericardial adhesions were noted. The Veteran's heart rhythm was regular and normal heart sounds were noted. The examiner stated that the Veteran's easily estimated METs levels are 5-7 METs. Additionally, the examiner noted that the Veteran has other multiple health issues that negatively affect his overall METs. However, the Veteran's METs level of 5 to 7 is based on the Veteran's cardiac condition only. The Board finds that a rating in excess of 60 percent beginning November 1, 2011, is not warranted. Specifically, the Veteran's January 2013 VA examination revealed the Veteran's workload of 3 to 5 METs, thereby warranting a 60 percent rating. Although, the Veteran's May 2016 VA examination revealed the Veteran's workload of 5 to 7 METs, warranting a 30 percent rating. However, the Board will not disturb the Veteran's current rating of 60 percent for the period of December 27, 2010 to August 28, 2011. A higher rating of 100 percent is not warranted as the evidence of record does not reveal a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, left ventricular dysfunction with an ejection fraction of less than 30 percent, or that an automatic implantable Cardioverter-Defibrillator (AICD) is in place In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). Other Considerations Additionally, the Court has held that a claim for a total rating based on unemployability due to service connected disabilities (TDIU), either expressly raised by a veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran has asserted that he is totally unemployable as the result of his service connected disabilities. Accordingly, the Board concludes that a claim for TDIU has been raised. However, the Veteran currently has a separate appeal pending for an increased rating for an acquired psychiatric disorder and TDIU. Thereby, the Board will not decide the issue of entitlement to TDIU now as it is currently being developed by the RO. ORDER Entitlement to an initial evaluation in excess of 30 percent for CAD prior to December 27, 2010, is denied. Entitlement to an initial evaluation in excess of 60 percent for CAD for the period of December 27, 2010, to August 29, 2011, is denied. Entitlement to an initial evaluation in excess of 60 percent for CAD beginning November 1, 2011, is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs