Citation Nr: 1803199 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 15-03 877A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a higher initial rating for coronary artery disease (CAD) status-post coronary artery bypass grafting (CABG), evaluated as 30 percent disabling prior to February 18, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to May 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which reviewed the Veteran's claim pursuant to Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal. 1989), and granted service connection for CAD status-post CABG, and assigned a 10 percent rating, effective April 19, 2007, and a 30 percent rating from May 5, 2010. In August 2011, the Veteran filed a Notice of Disagreement (NOD) with the assigned ratings. In a December 2014 rating decision, the RO assigned an earlier effective date for the grant of service connection for CAD status-post CABG to January 3, 1994. The rating decision also assigned a 30 percent rating prior to May 6, 2005; a temporary total (100 percent) rating from May 6, 2005 to August 31, 2005 for hospitalization; and a 30 percent rating from September 1, 2005. The RO issued a statement of the case (SOC) in December 2014 and the Veteran perfected his appeal with a February 2015 VA Form 9. In a September 2017 rating decision, the RO increased the rating for CAD status-post CABG to 100 percent, effective February 18, 2015. Insofar as higher ratings are available for this disability and the Veteran is presumed to be seeking the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). 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 For the period prior to February 18, 2015, the Veteran's ischemic heart disease has been productive of a workload greater than 5 METs, but has not been manifested by an episode of acute congestive heart failure, or left ventricular dysfunction with an ejection fraction (LVEF) less than 50 percent. CONCLUSION OF LAW The criteria for an initial disability rating higher than 30 percent for CAD status-post CABG for the period prior to February 18, 2015, have not been met. 38 U.S.C. §§ 5107, 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7017-7005 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's CAD status-post CABG is rated as 30 percent disabling, prior to February 18, 2015 pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7017-7005 (2017). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, Diagnostic Code 7017 applies to coronary bypass surgery. Diagnostic Code 7005 provides rating criteria for CAD. Under Diagnostic Code 7005, a 30 percent rating is warranted if the workload greater than 5 METs but not greater than 7 METs results 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 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 for LVEF of 30 to 50 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. The maximum schedular rating of 100 percent is warranted for chronic congestive heart failure; or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for LVEF of less than 30 percent. Id. 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, Note (2). August 1999 private progress notes document an abnormal EKG. The Veteran denied shortness of breath, nausea, vomiting or diaphoresis. He reported a positive stress test in 1993 and that he underwent cardiac catheterization that did not show any significant disease. During this visit, a stress EKG test was negative. In May 2005 the Veteran was admitted to a private hospital to treat complaints of chest pain. He underwent coronary catheterization and bypass procedure. At the time of discharge, treatment records stated that the Veteran's pain improved and he was doing well. In September 2005 his estimated METs workload increased from 2.53 to 6.09. The Veteran received private follow-up treatment for his heart condition. May 2005, October 2005, and March 2006 progress notes state that the Veteran has been doing well with no complaints of chest discomfort, shortness of breath, dizziness, lightheadedness, or syncope. In July 2006, he was admitted to a private hospital for sudden chest discomfort accompanied with shortness of breath, headaches, and weakness. Upon admission, he denied chest discomfort and instead complained of abdominal pain. An echocardiogram showed a severely dilated left atrium, but normal ventricular function with no effusion. He was discharged the same day in a stable condition. That same month, a non-stress echocardiogram test was normal. In June 2007 the Veteran had an abnormal electrocardiogram study indicating changes may be due to myocardial ischemia. July 2007 private progress notes state that the Veteran has been doing well with normal left ventricular systolic function and no complaints of dizziness, lightheadedness or syncope. March 2008 electrocardiogram tests show right bundle branch block and nonspecific ST-T changes. June 2008 progress notes document no complaints of chest discomfort, palpitations, edema, or syncope. On physical exam, an S4 gallop was found, but no murmurs. No medication changes were recommended. In April 2009, LVEF was normal. The Veteran was afforded a VA examination in May 2009. He reported the ability to perform extremely heavy physical exertion, such as spading a garden or walking uphill without shortness of breath, chest pain, or dizziness. Based on this information, his estimated METs level was12. A well-healed midline sternotomy scar on the anterior chest wall was noted. The Veteran was afforded another VA examination in May 2010. He stated that since the May 2009 examination, he has had shortness of breath with exertion, but no chest pain, pedal edema, fatigue, dizziness, or syncope. He reported that he stopped playing golf due to shortness of breath. His estimated METs level was 5.5 to 8.0. A well-healed midline sternotomy scar on the anterior chest wall was noted. In a January 2010 private consultation report, a cardiologist opined that the Veteran's chest pain was atypical. The Veteran reported intermittent chest pain for the past six months. On physical exam, there was regular heart rate, chest was clear to auscultation, and the cardiologist was unable to appreciate any murmurs. An electrocardiogram was normal and an assessment of atypical chest pain was provided. During an April 2010 visit, the Veteran denied chest pain, shortness of breath, dizziness, or syncope. Progress notes stated that he was doing well with no complaints. In April 2011, he complained of shortness of breath with physical activity, but denied chest pain. His cardiovascular exam and ejection fraction tests were normal with no evidence of any valvular heart disease. His shortness of breath was attributed to increasing age, but angina and ischemic components could not be ruled out. The Veteran was afforded a VA examination in March 2011. He denied chest pain or shortness of breath. An exercise test study showed an estimated workload of 10.7 METs. An EKG was conducted showing no abnormal changes, cardiac arrhythmias, hypertrophy or dilation. He had a normal LVEF of 55 percent. July 2011 private treatment records contain a positive stress test and abnormal catheterization findings. The Veteran underwent a cardiac catheterization to treat 100 percent occlusion. LVEF was 56 percent. The summary indicates that the Veteran had normal LVEF, 3-vessel CAD, and all grafts x 5 were normal. November 2011 private progress notes state that the Veteran denied chest pain or shortness of breath and reported that he was able to perform normal activities of daily living without changes. A cardiovascular exam was normal, and he was without any CAD or IHD symptoms. May 2013 progress notes document complaints of shortness of breath attributed to weather conditions, but denied current symptoms. CAD had no new signs or symptoms. The Veteran was afforded a VA examination in July 2014. He reported an increase in shortness of breath with activity and a new prescription of Niacin since his last examination. A history of myocardial infarction was noted, but no congestive heart failure, arrhythmia, a heart valve condition, pericardial adhesions, surgical procedures, or hospitalizations. On physical exam, the Veteran had regular heart rhythm, normal heart sound, normal peripheral pulses and no peripheral edema. He reported dyspnea, fatigue, and dizziness. An interview-based METs test revealed a workload of 5 to 7 consistent with activities such as walking one flight of stairs, golfing, mowing lawn, and heavy workload. There was no evidence of cardiac hypertrophy, dilatation, or scars. The examiner opined that the Veteran's heart condition did not impact his ability to work. For the period prior to February 18, 2015, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's CAD status-post CABG at any point during this appeal period. VA and private treatment records, as well as VA examination reports, have been reviewed and fail to demonstrate 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of 30 to 50 percent, as required for the next higher rating. On the contrary, during this period, the Veteran's estimated METs levels have ranged from 5 to 12 with no congestive heart failures and his LVEF has been calculated above 50 percent as normal. See March 2011 VA Examination Report, June 2011 Private Treatment Records. In fact, the July 2014 VA examination specifically indicated that there was no history of congestive heart failure. At best the evidence shows that the Veteran has achieved a workload greater than 5 METs, which is consistent with the currently assigned 30 percent rating criteria under Diagnostic Code 7005. Although September 2005 private treatment records contain an increased estimated METs workload from 2.53 to 6.09, the RO has already assigned a temporary total rating for the May 2005 hospitalization pursuant to 38 C.F.R. § 4.29 (2017). The Board has considered Diagnostic Code 7017, which is for application regarding coronary bypass surgery. A 100 percent rating is assigned for three months following hospital admission for surgery. However, after the three-month period, the rating criteria are identical to those for Diagnostic Code 7005, under which the Veteran's coronary artery disease is rated by analogy. Thus, changing the Diagnostic Code under which the Veteran is rated would not change his disability rating. The Board has also considered whether a separate compensable rating for scars associated with CAD status-post CABG is warranted. VA examiners have described associated scars as a well-healed midline sternotomy scar on the anterior chest wall. A compensable rating under Diagnostic Code 7801, which evaluates impairment for scars other than the head, face, or neck scar requires that the scar be deep and nonlinear and that it exceed 6 sq. inches (39 sq. cm.). The Veteran's scar does not meet those criteria. A compensable rating under Diagnostic Code 7802 for superficial scars requires that the scar cover an area of 144 square inches (929 sq. cm.), which has not been shown. Scars that are unstable or painful warrant a 10 percent rating under Diagnostic Code 7804. A note under Diagnostic Code 7804 defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. The Veteran's scar has not been described as unstable or painful, rendering Diagnostic Code 7804 inapplicable. Lastly, no limitation of function of affected part due to the scar has been shown. So, a rating pursuant to Diagnostic Code 7805 is not warranted. As such, a separate compensable rating for the Veteran's residual scar on the chest is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2017). The Board recognizes the Veteran's statements attesting to his symptoms. These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including treatment records and VA examination reports, include the information necessary to rate the Veteran's disability in accordance with the rating criteria and the VA examiners considered the Veteran's reported symptomatology when providing their assessments. As discussed above, while the Veteran is competent to report on the presence of certain symptoms, he is not competent to opine as to his specific METs level or whether left ventricular dysfunction is present at a specific ejection fraction, as confirmation of these symptoms requires precise medical testing. Thus, when considering the overall evidence of record, including the Veteran's statements, his CAD disability does not warrant a rating in excess of 30 percent for the period prior to February 18, 2015. In light of the above, the Board finds that the preponderance of the evidence is against an initial rating in excess of 30 percent for CAD status-post CABG prior to February 18, 2015. Since the evidence is not in equipoise, the provisions of 38 U.S.C. § 5107(b) regarding resolution of reasonable doubt are not applicable. III. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of CAD status-post CABG are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case neither the claimant nor the record has raised the question of unemployability due to service-connected disability. Therefore no further discussion of a TDIU is necessary. ORDER For the period prior to February 18, 2015, an initial rating in excess of 30 percent for CAD status-post CABG is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs