Citation Nr: 1801551 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-19 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial rating for ischemic heart disease with left ventricular hypertrophy, status post myocardial infarction (heart disorder) in excess of 30 percent prior to June 26, 2013, and in excess of 60 percent thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran had active duty from June 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March 2017, the RO increased the rating to 60 percent effective June 26, 2013. In October 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. During the hearing, the Veteran raised the issue of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), but requested to keep adjudicate the issue as a separate appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of an initial rating in excess of 60 percent prior to July 2, 2013, for a heart disability, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all doubt the Veteran's favor, prior to July 2, 2013, his heart disorder has manifested by LVEF of 50 percent. 2. Resolving all doubt the Veteran's favor, since July 2, 2013, his heart disorder has manifested by a workload of 1 to 3 METs resulting in dyspnea, fatigue, and dizziness. CONCLUSIONS OF LAW 1. The criteria for an initial 60 percent rating prior to July 2, 2013, for a heart disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). 2. The criteria for a 100 percent rating from July 2, 2013, for a heart disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks a rating an initial rating for a heart disability in excess of 30 percent prior to June 26, 2013, and in excess of 60 percent thereafter. The Veteran's heart disorder has been evaluated under Diagnostic Code 7005. Under this Code, a 10 percent rating is warranted for a heart disability resulting in a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating, is warranted for a heart disability resulting in a workload greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for a heart disability resulting in 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. A 100 percent rating is warranted for a heart disability resulting in chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; LVEF of less than 30 percent. 38 C.F.R. § 4.104. In May 2011, a VA-contracted examiner reported that the Veteran's LVEF was greater than 55 percent and estimated that he experienced angina and dizziness under a workload of greater than 5 METs but not greater than 7 METs. The examiner did not conduct a stress test or explain why such could not be conducted; and the examiner's LVEF was based on a test conducted by a private hospital, the results of which have not been associated with the claims file. In November 2011, a VA cardiologist conducted a stress test that revealed LVEF of 51 percent. See VA treatment record (November 2, 2011). On June 26, 2013, VA stress test indicated LVEF of 44 percent. On July 2, 2013, the Veteran's treating VA cardiologist estimated that he experienced dyspnea and fatigue under a workload of 1 to 3 METs. See Disability Benefits Questionnaire (July 2, 2013). In January 2015, a second VA clinician estimated that the Veteran experienced dyspnea, fatigue, and dizziness under a workload of 1 to 3 METs. See Disability Benefits Questionnaire (January 6, 2015). In December 2017, a VA examiner noted that a January 2017 echocardiogram showed LVEF of 45 to 50 percent. The examiner also noted that he could not accurately estimate the MET limitation attributable to the Veteran's heart disability as several disabilities impact the Veteran's METs. After resolving any doubt in the Veteran's favor, the Board finds that the evidence of record warrants a 60 percent rating prior to July 2, 2013, and a 100 percent rating thereafter. The rationale is that July 2, 2013, marks the earliest point at which an increase in severity became factually ascertainable. See Disability Benefits Questionnaire (July 2, 2013) (showing 1-3 METs). Additionally, the Board finds that the Veteran's treating cardiologist has provided the most probative estimation of the Veteran's METs since July 2, 2013. Prior to July 2, 2013, the evidence pertaining to the Veteran's LVEF and METs consists of the May 2011 VA contract examination in May 2011 and the November 2011 VA stress test. The Board finds that the results of the November 2011 VA stress test are more probative than those of the May 2011 examination as such are predicated on a stress test that is not of record. The November 2011 VA stress test shows that the Veteran's LVEF was 51 percent. After resolving any doubt in the Veteran's favor, the Board finds that such more nearly approximates the criteria for a 60 percent rating. The Board cannot render a final decision the remaining issue of entitlement to an initial rating in excess of 60 percent prior to July 2, 2013, without additional development. ORDER Subject to the law and regulations governing payment of monetary benefits, an initial 60 percent rating prior to July 2, 2013, for a heart disorder is granted. Subject to the law and regulations governing payment of monetary benefits, a 100 percent rating from July 2, 2013, for a heart disorder is granted. REMAND Evidence added to the record on December 8, 2017, indicates that the Veteran has been in receipt of Social Security disability benefits since January 2011. As records pertaining to such Social Security Administration (SSA) benefits are outstanding and may yield information relevant to the severity of the Veteran's heart disability, the Board must remand the issue of entitlement to an initial rating in excess of 60 percent prior to July 2, 2013, for a heart disability. See 38 C.F.R. § 3.159(c)(2)(2014); see Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). Accordingly, the case is REMANDED for the following action: 1. Obtain complete SSA disability records for the Veteran, to include underlying medical records upon which any SSA disability decision was based. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Finally, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs