Citation Nr: 1804486 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 13-31 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a rating in excess of 10 percent for ischemic heart disease, status post coronary artery bypass graft with scar residuals, and status post left pyelonephritis with scar residual. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Bodi, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1968 to August 1972. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2017. A copy of the hearing transcript has been associated with the claims file. FINDING OF FACT The Veteran's ischemic heart disease, status post coronary artery bypass graft with scar residuals, and status post left pyelonephritis with scar residual is manifested by METs of 12.6 requiring continuous medication for control; with no current residuals associated with his left kidney disability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for ischemic heart disease, status post coronary artery bypass graft with scar residuals, and status post left pyelonephritis with scar residual, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. 4.1, 4.115, 4.2, 4.3, Diagnostic Code 7017 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Additionally, the Veteran has not 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). The Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (citing 38 U.S.C. §§ 1110; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992)). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the disability has not significantly changed and a uniform evaluation is warranted. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.2. Prior to April 6, 2010, the Veteran's left kidney disability was evaluated under Diagnostic Codes 7504-7509, pertaining to chronic pyelonephritis and hydronephrosis, respectively. Under Diagnostic Code 7504, pyelonephritis is rated pursuant to the criteria for renal dysfunction and urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7504. Under Diagnostic Code 7509, hydronephrosis is rated as 10 percent rating disabling when there is only an occasional attack of colic, not infected and not requiring catheter drainage. Id. A 20 percent rating is warranted when there are frequent attacks of colic, requiring catheter drainage. A maximum 30 percent evaluation is warranted when there are frequent attacks of colic with infection (pyonephrosis), with impaired kidney function. If hydronephrosis is severe, it is rated as renal dysfunction. 38 C.F.R. § 4.115, Diagnostic Code 7509. The Veteran's ischemic heart disease, status post coronary artery bypass graft with scar residuals and status post left pyelonephritis with scar residual (formerly, residuals, pyelonephritis, left kidney) is currently rated under Diagnostic Code (DC) 7017 at ten percent from April 6, 2010. He contends he is entitled to a higher rating in excess of 10 percent. Under 38 C.F.R. § 4.104 , DC 7017 for coronary bypass surgery, a 10 percent rating is warranted when a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is warranted under DC 7017 when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted under DC 7017 when there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted under DC 7017 when there is chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A 100 percent evaluation is also warranted under DC 7017 for 3 months following hospital admission for coronary bypass surgery. For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters 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 for disability rating purposes. 38 C.F.R. § 4.104. III. History The Veteran was previously awarded service connection for residuals of pyelonephritis involving the left kidney and assigned an evaluation of 10 percent effective August 11, 1972. Since the 10 percent rating has been in effect for more than 20 years; the evaluation is protected, by law, against reduction. See 38 C.F.R. § 3.951. The Veteran was subsequently awarded service connection for ischemic heart disease, status post coronary artery bypass graft with scar residuals, effective April 6, 2010, the date of receipt of his claim for service connection. This condition was evaluated along with the previously service-connected residuals of pyelonephritis and the 10 percent evaluation was continued. The Veteran was afforded a May 2010 VA cardiovascular examination. Upon clinical examination, the physician noted that he had a 7-vessel coronary artery bypass graft (CABG) in April of 2003. He denied having any heart attacks, heart valve replacements, cardiac pacemaker implants, cardiac transplants, angioplasty, or automatic implantable cardioverter-defibrillator (AICD). His lower extremity peripheral pulses were normal. His chest x-ray showed cardiomegaly, which the VA examiner attributed to his hypertension (which is not service connected). The VA examiner noted his heart size was normal, as determined by palpation. His heart examination revealed normal Si and S2. No evidence of congestive heart failure or cor pulmonale was noted. The physician noted that a review of his exercise stress test, conducted on February 9, 2010, showed no ischemia, but did show atypical chest discomfort with findings consistent with the given diagnosis of ischemic heart disease. His estimated METs level was listed as 12.9. (One MET (metabolic equivalent) 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). The physician also noted that the Veteran was taking the following two medications on a daily basis for his heart condition: Lisinopril and Lovastatin. The VA examiner also noted that the Veteran had three superficial, linear, surgical scar residuals from his 2003 CABG. The first scar was located on his anterior chest that measured 21 centimeters by 0.3 centimeters. The second scar was on his left forearm that measured 24 centimeters by 0.2 centimeters. The third scar was located on his left lower medial leg that measured 33 centimeters by 0.2 centimeters. None of the scars were painful on examination nor did they show any evidence of skin breakdown, underlying tissue damage, inflammation, edema, keloid formation, or disfigurement. The scars also did not limit his motion or cause any limitation of function. The physician identified ischemic heart disease, status post coronary artery bypass graft, with scar residuals. Because of the prohibition noted above against assigning separate ratings for a disability from a disease of the heart and any form of nephritis (such as pyelonephritis), VA requested a second VA examination to determine the current status of the Veteran's left kidney condition. The Veteran was afforded a subsequent February 2011 VA examination. Upon clinical examination, the physician noted that the Veteran's CBC results and his Comprehensive Metabolic Panel test results showed no significant findings and were deemed to be within normal limits. His urinalysis was absent of protein (micro albuminuria), sugar, RBC, hyaline casts and granular casts. His chest x-ray showed a post-operative chest with no evidence of acute cardiopulmonary disease. The size of his heart was normal, determined by auscultation. There was no evidence of murmurs, gallops, heaves, or thrills. There was also no evidence of congestive heart failure, cardiomegaly, or cor pulmonale. His peripheral pulses were normal. Motor and sensory functions were within normal limits in both his upper and lower extremities. It was also noted he had three additional residual scars not indicated on the earlier examination. The first was on the anterior side of his trunk, at his left lateral abdomen, measuring 35 centimeters by 0.3 centimeters. The other two were located on his anterior abdomen, on either side of his umbilicus, described as post CABG drainage scars, with each measuring 3 centimeters by 0.5 centimeters. None of these scars were painful on examination or showed signs of skin breakdown, underlying tissue damage, inflammation, edema, keloid formation, or disfigurement. The scars also did not limit his motion or cause any limitation of function. The physician was not able to make a diagnosis for his left kidney pyelonephritis as the condition had resolved. Additionally, the VA examiner identified hypertension, and noted that there were no residuals of this hypertension with regard to the Veteran's eyes, heart, arteries, nerves, kidneys, or psychiatric condition. It was noted that his coronary artery disease was not caused by his elevated blood pressure, but rather was due to hyperlipidemia for which he was being treated with medication. The VA examiner opined that the Veteran's usual occupation and his daily activities were not affected by any of these conditions. The Veteran testified via video conference in April 2017. He reported that he is tired and more out of breath than he used to be. Treatment providers noticed a "weird beat," and recommended that he see a cardiologist because he has a "hiccup." Medication was recommended. He reports that his condition has gotten worse. The Veteran submitted a June 2017 Artery and Vein Conditions Disability Benefits Questionnaire (DBQ). The results were substantially the same. He underwent 7 vessel CABG in 2003. Ischemic heart disease, coronary artery disease, and venous insufficiency were identified in April 2003. His left forearm and chest have numbness. His left leg scar causes swelling and pain. His left flank scar is painful. Private treatment records were substantially the same. In his Notice of Disagreement (NOD), he asserts that his kidney condition and his heart condition are two separate conditions and should be rated higher than the 10 percent previously awarded for the kidney. VA regulations state that, in most cases, separate ratings are not to be assigned for a disability from a disease of the heart and any form of nephritis, due to the close interrelationship of cardiovascular disabilities. 38 C.F.R. § 4.115. Because there was no evidence in this case that an absence of a kidney was the sole renal disability or that the Veteran had a chronic renal disease that has progressed to the point where regular dialysis is required, such that separate evaluations for his heart condition and his kidney condition would be allowed, his newly-service-connected heart condition was evaluated along with his previously established pyelonephritis. His April 2017 testimony indicates that he believes he is entitled to a ten percent evaluation for the heart and ten percent for the kidney. IV. Analysis The Veteran is competent to report what he has been told by his physician. He is competent to report that he has undergone surgery, including 7 vessel bypass grafting. He is competent to report chest pain and shortness of breath. The Board finds these reports to be credible. Under the diagnostic criteria for evaluating coronary bypass surgery, an evaluation of 10 percent may be assigned if there is workload greater than 7 METs but not greater than 10 METS resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication is required. The most probative evidence is the May 2010 and February 2011 VA examinations. Read together, they showed no current residuals associated with the Veteran's kidney condition. The current rating of 10 percent, but no higher, for disability due to status post left pyelonephritis with scar residual, now evaluated with ischemic heart disease; status post coronary artery bypass graft with scar residuals effective April 6, 2010, is warranted based on the requirement for continuous medication (Lisinopril and Lovastatin) to control the Veteran's heart condition. An increased 30 percent rating for evaluating coronary bypass surgery is not warranted under DC 7017 unless there is a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. This is not the case based on the May 2010 and February 2011 VA examinations. There is no probative evidence to the contrary. A higher evaluation of 30 percent based on renal dysfunction due to the Veteran's kidney condition is not warranted unless albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling. A 30 percent evaluation may also be assigned for recurrent symptomatic urinary tract infection requiring drainage/frequent hospitalization (greater than, two times/year), and/or requiring continuous intensive management. A higher evaluation of 20 percent under DC 7509 for hydronephrosis is also not warranted unless evidence demonstrates colic requiring catheter drainage. Here, separate evaluations for his status post left pyelonephritis with scar residual and his now service-connected heart condition due to ischemic heart disease are not permitted, as there is no evidence the absence of a kidney was his sole renal disability or that he had a chronic renal disease that has progressed to the point where regular dialysis is required. The current schedular rating criteria under Diagnostic Code 7017 reasonably describe the present level of severity of the Veteran's disability and symptomatology. These are most closely approximated by the current ten percent rating under DC 7017. Consequently, the assigned schedular evaluation is considered appropriate and an increased rating is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased rating in excess of 10 percent for an ischemic heart disease, status post coronary artery bypass graft with scar residuals, and status post left pyelonephritis with scar residual is denied. ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs