Citation Nr: 1802384 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-08 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an effective date prior to November 17, 2010, for the grant of entitlement to service connection for non-obstructive coronary artery disease. 2. Entitlement to an initial rating in excess of 10 percent for non-obstructive coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from July 1969 to June 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for non-obstructive coronary artery disease and assigned a 10 percent rating, effective November 17, 2010. In September 2015, the Board remanded the claims on appeal for additional development. The claims file has been returned to the Board for consideration. FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran was not diagnosed with non-obstructive coronary artery disease until November 17, 2010. 2. The Veteran's non-obstructive coronary artery disease is not manifested by evidence of a workload of greater than 5 metabolic equivalents (METs), but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram (ECG), echocardiogram (EKG) or X-ray examination, or left ventricular dysfunction with an ejection fraction less than 50 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to November 17, 2010, for the grant of entitlement to service connection for non-obstructive coronary artery disease have not been met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.114, 3.151, 3.155, 3.309 (e), 3.400, 3.816 (2017). 2. The criteria for an initial rating in excess of 10 percent for non-obstructive coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.104, Diagnostic Codes (DCs) 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date The Veteran contends that the grant of entitlement to service connection for non-obstructive coronary artery disease warrants an effective date earlier than November 17, 2010. He has asserted in a number of statements during the appeal that he filed a prior claim to VA for service connection for a heart condition, in October 1990, and that he was not afforded a VA examination such that VA was unable to determine if he indeed had a heart condition; and that the claim pertinent to the effective date currently assigned is October 12, 1990. On October 12, 1990, the Veteran submitted a claim of entitlement to nonservice-connected pension, claiming that his lumbar spine disability prevented him from employment. During VA examination in December 1990, the examiner discussed that there was record that the Veteran had some chest pain prior to a knee surgery and that stress test results were normal. The examiner noted that the Veteran had some vague pain which did not sound like angina and had no definite cardiac history. No cardiac diagnosis was made. The RO denied the Veteran nonservice-connected pension by a January 1991 rating decision, citing chest pain in the list of conditions noted on VA examination. The RO and the Veteran have referred to the January 1991 rating decision as a decision that denied service connection for a heart condition. On November 26, 2010, the Veteran submitted a claim of entitlement to service connection for heart disease. In an April 2011 letter, the RO informed the Veteran that his claims file was being reviewed pursuant to the regulations wherein VA added ischemic heart disease to the list of presumptive diseases associated with herbicide exposure. 75 Fed. Reg. 53,216 (Aug. 31, 2010); 38 C.F.R. § 3.309 (e). In a June 2011 rating decision, the RO granted service connection for non-obstructive coronary artery disease and assigned the same an effective date of November 17, 2010, the date upon which clinical evidence indicated a diagnosis of such. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (a); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Although this regulation is no longer extant, because it was in effect during the pendency of this appeal, it is applicable to the present case. Effective August 31, 2010, coronary artery disease was added to the list of diseases presumed to be caused by exposure to an herbicide agent such as Agent Orange under 38 C.F.R. § 3.309 (e). See 75 Fed. Reg. 53, 202 (August 31, 2010). In general, when VA compensation benefits are awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary of VA (Secretary) or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). However, there is an exception to this rule under 38 C.F.R. § 3.816 which was promulgated pursuant to orders of the United States District Court in the class-action case of Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991). 38 C.F.R. § 3.816 (a) and (e). Under 38 C.F.R. § 3.816, for certain diseases added by the Secretary to the list of diseases presumed to be caused by Agent Orange exposure, as set forth in 38 C.F.R. § 3.309 (e), compensation benefits may be awarded prior to the effective date of the amendment adding the newly covered herbicide disease. These retroactive provisions apply to the addition of coronary artery disease to the presumptive list in August 2010. See 75 Fed. Reg. 53, 202 (providing, in pertinent part, that the Nehmer rules apply to the presumptive diseases newly added to 38 C.F.R. § 3.309(e), including coronary artery disease). The retroactive provisions of 38 C.F.R. § 3.816 provide, in pertinent part, that when a compensation claim for a covered herbicide disease is denied in a decision issued between September 25, 1985, and May 3, 1989, or is pending before VA on May 3, 1989, or received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award of service connection is the later of the date the claim was received by VA (which, in the case of a decision issued between September 25, 1985 and May 3, 1989, must be the claim on which the prior denial was based) or the date the disability arose. 38 C.F.R. § 3.816 (c). If such a claim is submitted within one year of service separation, then the effective date of the award is the day following the date of separation from service. 38 C.F.R. § 3.816 (c)(3). In other words, notwithstanding the fact that there was a prior final denial of the claim, or that the claim was submitted prior to the effective date of the newly established presumption for a covered herbicide disease, the effective date of service connection may be as early as the date of the original claim, as opposed to the date of the petition to reopen or the effective date of the new law. Section 3.816 defines a "covered herbicide disease" as a disease for which the Secretary established a presumption pursuant to the Agent Orange Act of 1991, Public Law 102-4 , other than chloracne, as provided in 38 C.F.R. § 3.309(e). As noted above, these provisions apply to the addition of coronary artery disease to the presumptive list in August 2010. For the purpose of determining entitlement to retroactive benefits for the grant of a covered herbicide disease under 38 C.F.R. § 3.816, a claim will be considered a claim for compensation for a covered herbicide disease if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disease. 38 C.F.R. §3.816(c)(2)(i). However, in the alternative, such a claim will be established for the purposes of 38 C.F.R. § 3.816 if VA issued a decision on the claim between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, and VA denied compensation in that decision for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. 38 C.F.R. § 3.816 (c)(2)(ii). Thus, there is no intent requirement to establish a claim under 38 C.F.R. § 3.816 (c)(2)(ii) for the purpose of entitlement to retroactive benefits pursuant to the Nehmer provisions. Here, the RO established an effective date of service connection for non-obstructive coronary artery disease of November 17, 2010. If the Veteran's October 12, 1990, claim for nonservice-connected pension, denied in January 1991, is considered a claim for service connection for a heart condition, then such is a claim that may be considered under the retroactive provisions of 38 C.F.R. § 3.816, as it was a compensation claim for a covered herbicide disease received by VA between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, August 31, 2010. Thus, the effective date of the award of service connection is the later of the date the claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c). The determination as to the date the disability arose, here, the date upon which the Veteran was diagnosed with the covered disease, coronary artery disease, is a complicated one. The Veteran's VA treatment records include a September 1998 entry noting that he has had occasional bouts of substernal burning after activity, which are relieved with one or two nitroglycerin, and listing an active problem of "CAD?S/P SMALL LAD MI, NO RI," and an "A/P" entry of "CAD: APPEARS STABLE, LAST STRESS TEST WITHOUT SIGNS OF ISCHEMIA; SX LIKELY GI IN ORIGIN BUT WILL CONTINUE WITH NTG AS NEEDED, CONT ASA." A VA treatment record dated in September 1999 contains an "A/P" entry of "CAD WITH STABLE OLD DISTAL LAD INFARCT - CONTINUE ASA AND NTG. STABLE ANGINAL PATTERN RIGHT NOW." A September 1999 VA treatment record notes that the Veteran was complaining of shortwindedness, even with minimal activity, with no associated chest pain or nausea. Thus, it was unclear to the Board, considering the November 17, 2010, VA treatment record which appeared to diagnose the Veteran with coronary artery disease for the first time, whether it was factually ascertainable that the record contained a coronary artery disease diagnosis prior to November 17, 2010. In its September 2015 Remand, the Board sought medical comment on this issue. The VA examiner, in February 2016, recited the above VA treatment records as well as results of the Veteran's August 2002 Agent Orange registry indicating that there was a history of acute myocardial infarction, diagnosed retrospectively, that the bottom of the heart was damaged per EKG within one year after pressure, anterior chest pain and dyspnea, date unknown, prior to the diagnosis of hypertension, and that there was twice weekly mid-sternal heaviness, the sensation of needles sticking into the same area radiating to the right anterior chest, lasting one to two minutes, relieved with nitroglycerin, associated with increased dyspnea and occasional dizziness, precipitated with emotion and occasional eating, frequent pyrosis, sour brash, without nausea or vomiting, hematemesis, heart failure, palpitations, arrhythmia, heart surgery, or reperfusion procedures, or coronary catheterization. The VA examiner determined that the earliest date on which it is factually ascertainable that the Veteran had coronary artery disease is November 17, 2010. He reasoned that review of the Veteran's treatment records from 1998 to1999 reveals his primary care provider notes which speculate on the nature of the Veteran's chest pain. The examiner noted that by June 2001, per the Veteran's VA treatment records, chest pain had disappeared from his problem list. She then noted that there was no documentation of an EKG, exercise stress test, coronary artery angiogram, or echocardiogram done in 1998 or 1999, and that the Veteran first underwent cardiac catheterization on November 17, 2010. She discussed that at that time, left ventricular wall motion was normal, and there was no evidence of a previous myocardial infarction in the left anterior descending aorta (LAD); therefore, the presumptive "old distal LAD infarct" was not confirmed on the definitive study on November 17, 2010. She concluded that there was no documentation of ischemic heart disease on the November 17, 2010, study, and that the Veteran's coronary artery disease was found to be non-obstructive. The VA examiner offered a reasonable medical basis for her conclusion that the earliest date on which it is factually ascertainable that the Veteran had coronary artery disease is November 17, 2010. Absent credible evidence to the contrary, the Board is not in a position to further question the results of the examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran is competent to report his cardiac symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). There is no evidence that the Veteran is not credible. However, to the extent that the Veteran purports to offer evidence that he had coronary artery disease prior to November 17, 2010, the Board finds that such statements are not competent, as the onset of his disability is a complex medical question. There is no evidence that he has the requisite medical expertise or training to opine as to the clinical onset of his coronary artery disease. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). His lay statements thus lack probative value and the Board places greater probative weight on the opinion of the VA examiner, given her medical training. As such, the dates relevant to the present inquiry, the earliest effective date for the grant of service connection for non-obstructive coronary artery disease, are October 12, 1990, the date of the claim, discussed above, and November 17, 2010, the date entitlement to service connection for the covered disease, coronary artery disease, the date upon which the most probative evidence of record indicates the Veteran was diagnosed with coronary artery disease. Thus, the effective date of the award of service connection is the later of the date the claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c). In this case, such date is indeed November 17, 2010, the date assigned by the RO in the June 2011 rating decision granting service connection for non-obstructive coronary artery disease. Accordingly, entitlement to an effective date of service connection for non-obstructive coronary artery disease earlier than November 17, 2010, is denied. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two ratings are potentially applicable, the higher rating will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the rating of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. By the June 2011 rating decision on appeal, the RO granted the Veteran service connection for non-obstructive coronary artery disease and assigned the same an initial 10 percent rating, effective November 17, 2010. On appeal is the initial rating and as such, the severity of the disability is to be considered during the period from the initial rating assignment of the ratings, November 17, 2010, to the present. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The record before the Board contains voluminous post-service treatment records, which will be addressed as pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001) (a discussion of all evidence by the Board is not required when the Board has supported its decision with thorough reasons and bases regarding the relevant evidence.). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. Doucette, 28 Vet. App. 366, 369-70. The Rating Schedule provides, under DC 7005, the criteria under which the Veteran's non-obstructive coronary artery disease is rated, that a rating of 10 percent is assigned for coronary artery disease when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope or where continuous medication is required. A 30 percent rating contemplates a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on EKG, ECG, or X-ray examination. A 60 percent rating contemplates 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, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. Finally, a 100 percent rating contemplates documented coronary artery disease (DC 7005) or myocardial infarction (DC 7006) (2017) resulting in chronic congestive heart failure, or; 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. 38 C.F.R. § 4.104, DC 7005, 7006. One MET 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. Record of a November 2010 VA cardiology procedure indicates, in pertinent part, that the Veteran's left ventricular ejection fraction was 60 percent, and that he was diagnosed with mild, non-obstructive coronary artery disease. On VA examination in April 2011, the examiner did not diagnose the Veteran with coronary artery disease. He referred to a January 2011 report of VA cardiac consultation indicating that the Veteran complained of dyspnea on exertion and chest pain and testing was within normal limits with minimal irregularities, non-conclusive. During a July 2014 pre-operative consultation for a right shoulder surgery that discussed his cardiac conditions including hypertension and coronary artery disease, as well as other conditions including asthma, obesity, and diabetes mellitus, the Veteran reported that he was unable to do what he used to do without shortness of breath, and the treatment provider noted a METS of less than four, with the Veteran walking one mile per day and doing yard work. VA treatment records dated in August 2014 indicate that the Veteran's left ventricular ejection fraction was 58 percent. On VA examination in December 2016, the Veteran was diagnosed with mild, non-obstructive coronary artery disease. The Veteran complained of shortness of breath, as well as chest pain, treated with continuous medication. The examiner reported that there was no history of myocardial infarction or congestive heart failure. There was no cardiac hypertrophy or dilatation. The examiner cited results of June 2012 cardiac testing, with the ejection fraction difficult to define due to rapid heart rate in atrial flutter coupled with poor images. The examiner cited results of a September 2010, dated prior to the appellate period, indicating METS of 5; however, the test was stopped prior to completion as the Veteran experienced a marked hypertensive response to exercise. The examiner, in an attempt to conduct an interview-based METS testing, reported that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. There is thus no evidence that the Veteran's non-obstructive coronary artery disease is manifested by a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on EKG, ECG, or X-ray examination, as is required for an initial increased rating, a rating of 30 percent under DC 7005. 38 C.F.R. § 4.104, DC 7005. As noted above, the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity during his interview-based METS testing on VA examination in December 2016. The September 2010 METS testing cited by the December 2016 examiner, revealing 5 METS, is dated prior to the current appellate period and cannot serve as a basis for an increased rating. Also, such was not completed and is thus an inadequate test result, as the test was stopped prior to completion due to the Veteran's marked hypertensive response to exercise. However, the September 2010 METS testing attempt serves as evidence that a laboratory determination cannot be done for medical reasons, and an estimation by a medical examiner of the level of activity that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104. The Board also considered the July 2014 VA report wherein a treatment provider, reviewing the Veteran's risks prior to surgery for his right shoulder, considered his cardiac conditions including hypertension and coronary artery disease, as well as other conditions including asthma, obesity, musculoskeletal disabilities, and diabetes mellitus, reported that the Veteran's METS was less than four, with the Veteran walking one mile per day and doing yard work. However, the estimated METS was not estimated considering only the Veteran's non-obstructive coronary artery disease and thus cannot serve as a basis for an increased rating. The Veteran's left ventricular ejection fraction has been, at worst, 58 percent during VA treatment in August 2014; which does not warrant an initial rating in excess of 10 percent for coronary artery disease under DC 7005, as DC 7005 only considers left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent in the rating criteria for a 60 percent rating and left ventricular dysfunction with an ejection fraction of less than 30 percent in the rating criteria for a 100 percent rating. 38 C.F.R. § 4.104, DC 7005. The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson, 12 Vet. App. 119; Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the Board finds that the evidence of record demonstrates that during the entire appellate period, the Veteran's non-obstructive coronary artery disease does not warrant an initial rating in excess of 10 percent. The claim must be denied. 38 U.S.C.A. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER An effective date prior to November 17, 2010, for the grant of entitlement to service connection for non-obstructive coronary artery disease is denied. An initial evaluation in excess of 10 percent for non-obstructive coronary artery disease is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeal Department of Veterans Affairs