Citation Nr: 1755029	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  12-04 841	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial rating higher than 10 percent for coronary artery disease (CAD) associated with herbicide exposure, status post-myocardial infarction (heart attack) x 2, post-right carotid artery stint x 2 for the period since November 3, 2011.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his son


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).

The Veteran served on active duty from August 1953 to August 1974. His service included two tours in Vietnam. 

This appeal to the Board of Veterans' Appeals (Board) arose from a December 2010 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO) that granted service connection for CAD and assigned an initial 10-percent rating, effective in January 2010. The Veteran perfected an appeal of the initial rating.

In September 2016, the Veteran appeared at a Board hearing via video teleconference before the undersigned. A transcript of the hearing testimony is associated with the claims file.

In a decision dated in December 2016, the Board denied an initial rating higher than 10 percent for the period prior to November 3, 2011, and remanded the case to the Agency of Original Jurisdiction (AOJ) for additional development related to the initial rating period since that date.


FINDING OF FACT

The weight of the evidence of record shows that for the period since November 3, 2011, the Veteran's CAD has continued to manifest with normal exercise capacity for his age and the requirement for continuous medication.

CONCLUSION OF LAW

The requirements for an initial evaluation higher than 10 percent for CAD for the period since November 3, 2011 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.10, 4.104, Diagnostic Code (DC) 7005 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and 
VA treatment records, including the VA examination reports are in the claims file. Further, as noted above, the Board remanded the case for additional development, to include an addendum to an examination report. As discussed later, the Board finds that there was substantial compliance with the remand directives. Neither the Veteran nor his representative has asserted that there are additional records to obtain. As such, the Board will proceed to the merits of the appeal.

Applicable Law and Regulation

Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id.; 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10.
If there is a question as to which disability rating to apply to the Veteran's disability, 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.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see also Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nonetheless, the Veteran is entitled to a staged rating for any part of the rating period where the disability manifested with greater severity. See O'Connell v. Nicholson, 21 Vet. App. 89, 
91-92 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Discussion

By way of history, the Veteran applied for VA compensation for his heart disability in January 2010. The history of his grant of service connection and initial rating were noted in the Introduction. The private and VA records reflect that the Veteran sustained his first heart attack in June 2001. His treatment included placement of a right interval carotid artery stint. (02/09/2010 Medical Treatment-Government Facility, pp. 1, 15)

The main issue currently in dispute is whether the Veteran should be rated in accordance with the earlier determination that his METS was >5 but < 7, which would result in a rating higher than 10 percent. The December 2016 Board decision denied a rating higher than 10 percent because the examiner at the March 2010 examination opined that the Veteran's METS of >5 but not >7 was not due to his CAD but due to his age. The Board closed the prior rating period on the date indicated because the Veteran sustained his second heart attack on that date.

The AOJ arranged another examination after the one in 2010. The May 2016 
VA examination report reflects that the examiner reviewed records of the Veteran's private physician, Dr. L, that the Veteran provided at the examiner's request and such records were forwarded directly to the examiner. (05/21/2016 C&P Exam-DBQ Cardio, p. 1) The VA examiner noted that prior examiners either did not have access to the Veteran's records (see, i.e., 04/27/2016 CAPRI, p. 306), or the impact on the Veteran's METS of his other non-CAD-related disabilities was not assessed.  Based on a telephone interview of the Veteran and review of his records, the 
VA examiner opined that, based on a "pure cardiac standpoint," the Veteran's METS would be at least >7-10, which is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, or jogging (6 mph). (05/21/2016 C&P Exam-DBQ Cardio, p. 6)

At the hearing, the Veteran and his son took issue with the 2016 examiner's METS assessment. The Veteran testified that he last sawed wood 20-25 years ago, and that the most rigorous activities of which he is capable is walking. His son testified that he simply did not understand how the examiner could say that the Veteran was capable of jogging.

In a September 2016 letter, Dr. L noted that after the Veteran's second heart attack in November 2011, a second stint was inserted, and that the Veteran's last carotid evaluation showed unilateral moderate stenosis of 50 to 60 percent. Dr. L noted that the Veteran had chronic shortness of breath and dyspnea on exertion; and, chronic chest pressure that is likely angina, secondary to pulmonary issues or a combination of both. Dr. L noted that he saw the Veteran the day he penned the letter and-referencing the VA examiner's determination of METS >7-10, opined that such a METS for the Veteran was impossible. He noted that the Veteran had shortness of breath and dyspnea on exertion just walking the 50 feet back to his office. The Board surmises that Dr. L meant the distance from his waiting area to his office. Based on that observation, Dr. L opined that a METS of 1 to 3 "would be more like it." He noted that  there was no doubt in his medical mind that there is a greater than 50-percent likelihood that the Veteran's multiple cardiac and vascular diagnoses are due to his military service due to his Agent Orange exposure and multiple other exposures during his military service. (10/26/2016 Medical Treatment-Non-Government Facility, p. 2)

The Board notes Dr. L's opinion that the Veteran's chronic shortness of breath and dyspnea on exertion; and, chronic chest pressure that is likely angina, secondary to pulmonary issues or a combination of both. Where service connection is in effect for one diagnosis involving some component of an anatomical or functional system, and there are additional diagnoses concerning pathology of that system of record, there must be evidence that permits the adjudicators to distinguish between manifestations that are service connected and those that are not. See Waddell v. Brown, 5 Vet. App. 454, 456-57 (1993). When it is not possible to separate the effects of a non-service-connected condition from those of a service-connected condition, VA regulations dictate that such signs and symptoms be attributed to the service-connected condition. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102 (2003). 

The VA examiner did not comment in the May 2016 examination report on Dr. L's opinion. Hence, the Board remanded so the VA examiner could do so. The August 2017 examination report reflects that the VA examiner, Dr. C, considered the prior examination report, Dr. L's opinion, and the medical records added to the claims file since the May 2016 examination. Referencing one of the questions the Board posed in the remand, Dr. C noted that she did in fact consider that the Veteran was 79 years old and post-CAD. Dr. C noted that the records added to the claims file did not contain any new information relevant to the CAD. As for Dr. L's opinion that Dr. C's assessed METS for the Veteran was "impossible," Dr. C responded that the evidence of record should be considered dispassionately and objectively.

Dr. C noted that the two points on which she and Dr. L agreed were, 1) that the Veteran's CAD is due to his presumed prior exposure to Agent Orange; and, 2) that the Veteran's day-to day overall METs are 1-3, which she, Dr. C, noted in the May 2016 examination report. From that juncture, however, Dr. C respectfully disagrees with Dr. L's opinion that the METS of 1-3 addresses all facets of the Veteran's cardiac disability. Dr. C observed that Dr. L gave no rationale whatsoever for his opinion that the Veteran's METS limiting dyspnea on exertion is due to pulmonary or cardiac issues, or both; and, Dr. L made no effort to determine the cardiac-specific METS. As a result, she respectfully disagreed with Dr. L. Dr. C noted that clinical records dated December 8 and 29, 2016, February 8, 2017, and July 3, 2017 documented no cardiac symptoms whatsoever. In fact, it was noted that a July 3, 2017 treatment report specifically noted no chest pain or cardiac induced shortness of breath, which is in direct contrast to Dr. L's assessment. Dr. C noted further that complaints of shortness of breath and dyspnea on exertion noted in December 2016 were clearly attributed to non-cardiac pulmonary etiology. Further, the last December 2016 entry noted that a recent chest CT scan had demonstrated moderate to marked emphysema and, in addition, extensive left pleural/parenchymal scarring probably due to an old empyema infection. Hence, Dr. L opined that the weight of the objective evidence showed that the Veteran's shortness of breath and dyspnea on exertion METS limitations were overwhelmingly pulmonary in derivation, and not cardiac.

As for Dr. L's opinion that a METS of >7-10 was "impossible" in a 79-year-old patient who was re-vascularized and had essentially a normal echocardiogram (except Grade I diastolic dysfunction) with an ejection fraction of 60-65 percent, no left ventricle (LV) hypertrophy, no chamber dilation, and no wall motion abnormalities, Dr. C disagreed. Dr. C suggested that Dr. L's opinion was proffered more so from the perspective of his being the Veteran's personal physician versus an objective assessment. Dr. C asked rhetorically if Dr. L actually professionally believed that it is impossible for a 79yearold re-vascularized CAD patient with completely normal LV function to have METS of  >7-10? Dr. C did not believe that to be the case. Accordingly, based on her assessment of the objective records and her stated rationales, she stood by her May 2016 METS assessment of >7-10. (08/11/2017 VA Examination)

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another, Evans v. West, 12 Vet. App. 22, 31 (1998), but may favor the opinion of one competent medical expert over that of another, provided the reasons therefor are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Further, while the Board is not free to ignore the opinion of a treating physician, neither is it required to automatically accord it substantial weight. See generally Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Courts have repeatedly declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence.  See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Harder v. Brown, 5 Vet. App. 183, 188 (1993); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); Chisem v. Brown, 4 Vet. App. 169 (1993).

In the post-remand appellate brief, the Veteran's representative asserts that Dr. L's opinion at least places the evidence in equipoise. (11/16/2017 Appellate Brief) The Board disagrees with and rejects the assertion. One need only review Dr. C's explanation of her opinion for her opinion to readily afford significantly more weight to it. The Board finds that not only does Dr. L's opinion lack a rationale; it also is simply against the weight of the evidence, as Dr. C observed. (See 05/26/2016 Medical Treatment-Non-Government Facility, p. 32, 37, 39, 42, 66) Hence, the Board finds Dr. C's opinion highly probative and affords it significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Board, as a fact-finder, is obligated to go where the facts lead it. Indeed, the Board may appropriately place greater probative weight on certain aspects of the record that it finds persuasive. Owens v. Brown, 7 Vet. App. 429, 433 (1995).

In light of the above, the Board finds that the preponderance of the evidence shows that METS 1 to 3 is not due to the Veteran's CAD, which has continued to manifest with normal exercise capacity for his age and the requirement for continuous medication, and the assigned 10-percent rating. 38 C.F.R. §§ 4.1, 4.10, 4.104, 
DC 7005. In this regard, the Board finds the 2017 addendum opinion to be probative, persuasive, and to carry much weight.  The Board places much weight on this the VA physician 2016 and 2017 reports because the physician reviewed the claims file and become familiar with the Veteran's particular medical history (cardiac and otherwise), to include the Veteran's age, and provided a thorough rationale for the opinion given, to include citing specific pieces of evidence in the record as support. The Board fully acknowledges the opinion of Dr. L. and the lay testimony of the Veteran his son, but it finds that such are outweighed for the reason stated. The Board finds further that the evidence of record shows no factual basis for a staged rating for any part of the initial rating period.

In reaching this decision the Board considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's claim for a higher rating, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

An initial evaluation higher than 10 percent for CAD for the period since November 3, 2011 is denied.




____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs