Citation Nr: 1801413	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-17 026	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada


THE ISSUE

Entitlement to an initial compensable evaluation for coronary artery disease in excess of 60 percent prior to May 12, 2017.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

E. Morgan, Associate Counsel



INTRODUCTION


The Veteran had active duty service from February 1960 to April 1989.

This appeal comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision from the RO in St. Petersburg, Florida.  During the pendency of this appeal, the Veteran's claims file was transferred to the RO in Wichita, Kansas, and is currently under the jurisdiction of the RO in Reno, Nevada.

In a September 8, 2017 rating decision, the RO increased the Veteran's evaluation from 30 percent to 60 percent from March 21, 2012 to May 11, 2017 for coronary artery disease.  From May 12, 2017 and thereafter, the RO evaluated the Veteran's coronary artery disease at 100 percent disabling.   

In July 2015, the Veteran had a hearing before a Veterans Law Judge who is no longer with the Board.  The Veteran was afforded the opportunity to have a new hearing before the Board.  He was given 30 days to respond if he wanted a new hearing.  However, there was no response.  Thus, the Board presumes that the Veteran did not want a new Board hearing and will proceed with deciding the issues.  

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).


FINDING OF FACT

Prior to May 12, 2017, the Veteran's coronary artery disease was not manifested with congestive heart failure, left ventricular dysfunction with an ejection fraction of less than 30 percent or a workload of 3 METS or less resulting in dyspnea, fatigue, angina, dizziness or syncope.



CONCLUSION OF LAW

Prior to May 12, 2017, the criteria for an initial disability rating in excess of 60 percent for coronary artery disease have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7005 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Increased Schedular Rating for Coronary Artery Disease in excess of 60 percent prior to May 12, 2017

Disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  See 38 U.S.C. § 1155, 38 C.F.R. § 4.1. 

If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.

A disability rating may require re-evaluation in accordance with changes in condition.  Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment.  38 C.F.R. § 4.1.  See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports.  Id.  Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Coronary artery disease is rated based on criteria found at 38 C.F.R. § 4.104, Diagnostic Code 7005.

Under the criteria, a 60 percent rating is assigned for documented coronary artery disease resulting in more than one episode of acute congestive heart failure in the past year, or; if a workload of greater than 3 METs but not greater than 5 METs results in dyspnea (shortness of breath), fatigue, angina, dizziness, or syncope, or; if there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005.

A 100 percent rating is assigned for documented coronary artery disease resulting in chronic congestive heart failure, or; if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; if there is left ventricular dysfunction with an ejection fraction less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. 

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.

In February 2012, at a private facility, the Veteran had two stents placed in his heart.  The February 2012 record indicated angina, coronary artery disease and an abnormal stress test.  The February 2012 medical record showed that the Veteran's ejection fraction was 70 percent, which is within the normal range.  

The Veteran was afforded a VA examination in March 2012, and the examiner reported a diagnosis for ischemic heart disease.  The examiner reported that the Veteran did not have congestive heart failure. 

A June 2012 VA examiner reports a diagnosis for coronary artery disease with ischemic heart disease.  The examiner indicated that the Veteran had a myocardial infraction.  The examiner reported that the Veteran did not have congestive heart failure.  The examiner reported that the Veteran's workload METS were greater than 5-7, and his coronary artery disease did not impact his ability to work.

In February 2013, the Veteran had a Myocardial Perfusion Imaging Study which showed an ejection fraction of 75 percent and his workload METS were 6.80.  

In May 2013, the Veteran was afforded a cardiac catheterization and the study showed small vessel coronary artery disease in association with morbid obesity and progressive shortness of breath. 

In August 2014, a cardiac catheterization study showed that the Veteran had an ejection fraction of 65 percent. 

In January 2015, the Veteran had no cardiac complaints.  In June 2015 and in April 2016 the Veteran's private treatment records show diagnoses for coronary artery disease, coronary stents, hypertension and hyperlipidemia.  

A March 2015 VA examiner reported that the Veteran's workload METS were greater than 5-7.  The examiner reported that the Veteran's ejection fraction was 74 percent.  A December 2015 VA examiner reported that the Veteran's workload METS were greater than 3-5. The examiner reported that the Veteran did not have congestive heart failure. 

A May 2017 VA examiner reported a diagnosis for congestive heart failure for the Veteran.  The examiner reported that the Veteran's ejection fraction was 59 percent and his workload METS were greater than 3-5.  

After review of the evidence of record, the Board finds that the preponderance of the evidence is against an increase in the Veteran's coronary artery disease disability rating in excess of 60 percent prior to May 12, 2017.  The evidence of record reflects that the Veteran's coronary artery disease did not result in chronic congestive heart failure prior to May 12, 2017.  The evidence of record also reflects that prior to May 12, 2017, the Veteran's coronary artery disease did not result in workload of 3 METS or less, resulting in dyspnea, fatigue, angina, dizziness or syncope.  Also, the evidence does not reflect that the Veteran has had an ejection fraction less than 30 percent for any period on appeal. 

While the Veteran has a history of coronary artery disease and he has had angina, his symptoms do not meet the rating criteria for a disability rating of 100 percent prior to May 12, 2017.  Therefore, the Board finds that prior to May 12, 2017, the Veteran's coronary artery disease does not meet the criteria for an initial rating in excess of 60 percent, as the clinical findings do not support a 100 percent evaluation.  

The Veteran's representative submitted an informal hearing brief (IHP) in December 2017.  The representative asserted that the Veteran is entitled to a disability evaluation in excess of 60 percent prior to May 12, 2017.  However, as stated above the Veteran's coronary artery disease more closely approximates a 60 percent disability evaluation prior to May 12, 2017 based upon review of the evidence of record in its entirety.  

In December 2015, the Veteran asserted that he has had multiple cardiac catheterizations, stenting for his coronary artery disease and that he is on medication for his disease.  The Board finds that the 60 percent disability evaluation takes into consideration the Veteran's history and symptoms for coronary artery disease between March 21, 2012 and May 11, 2017.  The Veteran's workload METS of greater than 3-5 warrant the 60 percent disability rating for the time period on appeal.  However, the evidence of record is negative for evidence reflecting the rating criteria required for an evaluation in excess of 60 percent for coronary artery disease prior to May 12, 2017 based upon symptoms, diagnoses and test results reported in the evidence of record.  

In sum, the Board finds that the preponderance of the evidence is against an increase in the Veteran's coronary artery disease disability rating in excess of 60 percent prior to May 12, 2017. See 38 C.F.R. § 4.104, Diagnostic Code 7005.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).	


ORDER

Entitlement to an initial compensable evaluation for coronary artery disease in excess of 60 percent prior to May 12, 2017, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs