Citation Nr: 1756546 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-19 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial disability rating in excess of 30 percent disabling for ischemic heart disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board remanded this matter for a VA examination in April 2016. The Board finds there has been substantial compliance with its April 2016 remand directives. See, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also, Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand). FINDING OF FACT For the entire period on appeal, the Veteran's ischemic heart disease is manifested by left ventricular dysfunction with an ejection fraction of 65 to 70 percent and evidence of cardiac hypertrophy on electrocardiogram, but not by workload of 3 METs or less, or greater than 5 METs, but not greater than 7 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope, acute or chronic congestive heart failure, or myocardial infarction since 1996. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for ischemic heart disease have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.100, 4.104, Diagnostic Code 7005 (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Schedular Rating law and Analysis Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See, Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2017). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's ischemic heart disease is rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. The Veteran had a myocardial infarction in 1996. Under Diagnostic Code 7005 a 10 percent rating contemplates a workload of greater than 7 METs, but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or that continuous medication is required. 38 C.F.R. § 4.104. A 30 percent rating is assigned for a workload of greater than 5 METs, but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is assigned where there is 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 less than 30 percent to 50 percent. Id. Finally, a 100 percent rating is assigned where there is documented coronary artery disease (Diagnostic Code 7005), myocardial infarction (Diagnostic Code 7006) resulting in chronic congestive heart failure, 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. Id. One MET (metabolic equivalent) 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). 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 must be ascertained. Even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication, when the left ventricular ejection fraction has been measured and is 50 percent or less, when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year, and when a 100 percent evaluation can be assigned on another basis. If left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on 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 veteran's cardiovascular disability. 38 C.F.R. 4.100. The Veteran contends he is entitled to an initial disability rating in excess of 30 percent for his service-connected ischemic heart disease. The Board notes that service connection was granted effective December 24, 2009. An April 2016 Board decision denied an earlier effective date for ischemic heart disease. The Veteran was afforded a VA heart examination in March 2010. A diagnosis of ischemic heart disease was noted. It was also noted that the Veteran experienced a myocardial infarction in June 1996. It was noted the Veteran experiences dyspnea upon moderate exertion and requires continuous medication for heart disease. A May 2010 addendum to the March 2010 VA heart examination notes the Veteran completed an exercise stress test. It was further noted that the Veteran exercised for 2 minutes and 52 seconds of stage 4 standard Bruce protocol with a heart rate at peak exercise of 120 beats per minute, or only 76% of his maximum predicted heart rate. It was noted that the test was indeterminate, but that the Veteran has "[e]xcellent exercise tolerance." The Veteran was afforded a VA ischemic heart disease examination in April 2011. A diagnosis of coronary artery disease was noted, for which the Veteran requires continuous medication. It was further noted that the Veteran does not have congestive heart failure. It was noted that an echocardiogram showed evidence of cardiac hypertrophy with a left ventricular ejection fraction of 65 to 70 percent. A July 2016 VA treatment record notes the Veteran reported that he had been having exertional dyspnea sometimes associated with vague chest pain for the prior two months. The Veteran was afforded a VA heart conditions examination in September 2016. A diagnosis of coronary artery disease requiring continuous medication was noted. It was further noted that the Veteran has not had congestive heart failure. An April 2011 echocardiogram was referenced and it was noted that there was evidence of cardiac hypertrophy with a left ventricular ejection fraction of 65 to 70 percent. Wall thickness was described as abnormal. Due to medical contraindication of exercise testing (lung cancer treatment), interview-based METs testing was done and it was noted that the Veteran denied any symptoms attributable to a cardiac condition with any level of physical activity. The Board notes that in a November 2017 disagreement regarding a rating decision dealing with lung cancer (a matter not before the Board), the Veteran stated that he met with his pulmonologist after experiencing shortness of breath after exertion. The Veteran related a diagnosis from his doctor of interstitial lung disease. The Board finds that this complaint of shortness of breath, based on the diagnosis related by the Veteran, is not related to his ischemic heart disease. Considering the totality of the evidence, the Board finds that the Veteran's disability picture more nearly approximates that contemplated by the 30 percent rating for the appeal period. See 38 C.F.R. § 4.7. The weight of the evidence shows that an electrocardiogram has revealed a left ventricular ejection fraction of 65 to 70 percent, as well as evidence of cardiac hypertrophy. Furthermore, the Veteran has documented coronary artery disease for which he requires constant medication. The Board finds that the higher disability rating of 60 percent is not warranted. The evidence does not show that the Veteran has experienced any episode of acute congestive heart failure at any time during the appeal period, nor does it show 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 less than 30 percent to 50 percent. Furthermore, the Board finds that the highest disability rating of 100 percent is not warranted. While the evidence does show documented coronary artery disease, it does not show that the Veteran has experienced myocardial infarction (Diagnostic Code 7006) resulting in chronic congestive heart failure, 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. For the above-stated reasons, the Board finds the evidence of record during the entire appeal period does not support a disability rating higher than 30 percent for the Veteran's ischemic heart disease under Diagnostic Code 7005. ORDER Entitlement to an initial disability rating in excess of 30 percent disabling for ischemic heart disease is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs