Citation Nr: 1756829	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  14-15 705	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an initial disability rating in excess of 30 percent for coronary artery disease bypass graft surgery with scar.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and Stepdaughter 


ATTORNEY FOR THE BOARD

M.D., Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1968 to May 1971. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 

In March 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record.


FINDING OF FACT

From the time of the initial grant of service connection, the Veteran's coronary artery disease has been manifested by a left ventricular ejection fraction of greater than 50 percent; and there has been no showing of more than one episode of acute congestive heart failure in any year, or a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope.  The surgical scar is asymptomatic.


CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 30 percent for coronary artery disease bypass graft surgery with scar have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7017; § 4.118, Diagnostic Code 7804 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist 

VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative have asserted any error as to these duties. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

In October 2010, October 2011 and December 2012, the Veteran was provided VA examinations regarding his claim. The Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal.  

As previously noted, the Veteran was provided an opportunity to set forth his contentions before a Veterans Law Judges in March 2017. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that a "hearing officer" who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran has not raised any deficiency with the hearing and the Board does not otherwise find any error. See Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016).

The Veteran was provided another examination in October 2017.  The RO has not subsequently readjudicated this appeal nor did the Veteran specifically waive AOJ consideration of this evidence, although he generally indicated a desire to waive AOJ consideration at the time of the Board hearing.  At the time of the hearing, the undersigned also discussed whether the Veteran was willing to attend another examination based on contentions of change.  Review of the October 2017 examination report continues to show the same general manifestations of disability without a basis for indicating a change in severity.  Considering all of this, the Board finds that there would be no useful purpose in remanding this appeal or delaying its adjudication by seeking an explicit waiver of this evidence.  See Soyini v. Derwinski, 1 Vet . App. 540, 546 (1991).  In general, this evidence is redundant of the evidence from prior medical examination; this report also indicates that another remand to obtain another examination would service no useful purpose.  In this the Board has also carefully considered the relevant regulations and the exceptions contained therein to the AOJ needing to issue an SSOC.  See 38 C.F.R. §§ 19.31, 19.37, 20.1304.

II. Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The Veteran's service-connected coronary artery disease is rated under 38 C.F.R. § 4.104, Diagnostic Code 7017, pertaining to coronary bypass surgery. Under Diagnostic Code 7017, a 100 percent rating is assigned for three months following hospital admission for coronary bypass surgery. After three months following hospital admission for surgery, a 100 percent rating is assigned for coronary artery disease resulting in chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. A 60 percent rating is assigned for disability resulting in more than one episode of acute congestive heart failure during the past year; or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 30 percent rating is assigned for disability resulting in a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 10 percent rating is assigned for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required.

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 evaluation, 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).

III. Summary of the Relevant Evidence

The Veteran seeks a higher initial rating for coronary artery disease bypass graft surgery with scar. The Veteran's service-connected coronary artery disease has been rated as 30 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7017, since May 7, 2009, the date of receipt of his claim for service connection for that disability. The applicable rating period is from May 7, 2009, the effective date for the award of service connection for the disability, through the present. See 38 C.F.R. § 3.400.

Review of the Veteran's ischemic heart disease disability benefits questionnaire, dated September 2010, revealed that the Veteran suffered from coronary artery disease which was diagnosed on December 12, 2006. The examiner noted that the Veteran does not have chronic congestive heart failure. The Veteran's METs was 7.9 and diagnostic testing confirmed the existence of mild left ventricular hypertrophy and mildly dilated left atrium with a noted ejection fraction of 60 percent. 

The Veteran was afforded a VA examination in October 2010. The Veteran reported that he experienced angina and shortness of breath. The Veteran reported no dizziness, syncope attacks, or fatigue. The examiner reported that the Veteran's heart does not reveal any evidence of congestive heart failure. The Veteran's METs was 9.5 on treadmill stress testing. 

The Veteran was afforded a VA examination in October 2011. The examiner reported that there is no evidence of murmurs or gallops and that examination of the heart does not reveal any evidence of congestive heart failure. The examiner noted that a stress test was performed in October 2011 and the stress test results were significant for decreased exercise tolerance. The length of the strength test was 4 minutes and was stopped due to chest pain. The actual METs level was 6.4. 

The Veteran was afforded a VA examination in December 2012. The examiner reported that the Veteran has not had myocardial infarction or congestive heart failure. The examiner noted that the Veteran does not have cardiac arrhythmia. The examiner noted that there was evidence of cardiac hypertrophy and cardiac dilatation. The Veteran's interview-based MET test revealed that the Veteran experiences symptoms of dyspnea and angina at a greater than 7 to 10 METs level. The left ventricular ejection fraction was 64 percent.  

The record does not contain evidence that the scar is painful or unstable and the Veteran has not asserted that it is.

IV. Analysis 

Initially, the Board notes that the Veteran's coronary bypass surgery occurred in December 2006. Therefore, that surgery occurred before the relevant rating period, and a 100 percent rating for the three months following that surgery under 38 C.F.R. § 4.104, Diagnostic Code 7017, is not available in this case.

The Board finds that the next higher 60 percent rating is not warranted for coronary artery disease, where the Veteran did not have evidence of more than one episode of acute congestive heart failure; did not have an estimated workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; and did not have a left ventricular ejection fraction of 30 to 50 percent. 
Accordingly, the Board finds that a higher 60 percent rating under Diagnostic Code 7017 has not been met or more nearly approximated. See 38 C.F.R. § 4.104 (2017).

The Board has considered the Veteran's contentions as well as the Veteran's stepdaughter's testimony that the Veteran's service-connected coronary artery disease warrants a higher rating. While the Veteran and his stepdaughter are competent to testify to the presence of certain symptoms, such as fatigue, dizziness,  and chest pain the Veteran and his stepdaughter are not competent to opine as to whether cardiac hypertrophy, dilation, or left ventricular dysfunction is present, or the level of his ejection fraction. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

Given the above, the Board finds that a rating in excess of 30 percent is not warranted. 38 C.F.R. § 4.104. Because the preponderance of the evidence is against the claim, the doctrine of the benefit of the doubt is not for application. 38 U.S.C.   5107(b) (2012); 38 C.F.R. § 4.3 (2017).

The Board has also considered whether the Veteran is entitled to a separate rating for the surgical scar associated with his cardiac surgeries. 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805 provide the rating criteria for different types of scars. As indicated, the evidence indicates that the surgical scar is asymptomatic, without evidence that is painful or unstable.  The evidence weighs against a finding that it is compensable.



ORDER

Entitlement to an initial disability rating in excess of 30 percent for coronary artery disease bypass graft surgery with scar is denied.




____________________________________________
Nathaniel J. Doan 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs