Citation Nr: 1804624 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 12-18 426 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to a rating in excess of 10 percent, prior to September 19, 2016, for service-connected status post myocardial infarction (heart condition). 3. Entitlement to a rating in excess of 60 percent, from September 19, 2016, for status post myocardial infarction (heart condition). REPRESENTATION Veteran represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 2001 to March 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The case has since been transferred to the RO in Roanoke, Virginia. The Board notes that the issue of entitlement to service connection for hypertension was initially included in the Veteran's appeal. By a September 2017 rating decision, the RO granted entitlement to service connection for hypertension from the date of the claim. As the RO's actions represent a full grant of benefits sought, the issue is no longer on appeal before the Board. FINDINGS OF FACT 1. During the pendency of the claim, the Veteran has not had a current diagnosis of sinusitis. 2. From May 13, 2011 to June 13, 2016, the Veteran's status post myocardial infarction was manifested by the continuous requirement of medication, but did not manifest in dyspnea, fatigue, angina, dizziness, or syncope at a workload of less than 7 METs; or in cardiac hypertrophy or dilatation. 3. From June 13, 2016, the Veteran's status post myocardial infarction has been manifested by dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3, but no greater than 5 METs, without evidence of chronic congestive heart failure or an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. Prior to June 13, 2016, the criteria for a rating in excess of 10 percent disabled for status post myocardial infarction have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.104, Diagnostic Code 7006 (2017). 3. From June 13, 2016, the criteria for a rating of 60 percent disabled, but no higher, for status post myocardial infarction have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.104, Diagnostic Code 7006, 7007 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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 a duty to assist argument). II. Service Connection for Sinusitis Pertinent Law and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). Analysis Although the Veteran claimed in his RO hearing that he had been given a diagnosis of sinusitis, VA medical records, and private medical records do not show any such diagnosis. In October 2016, the Veteran underwent a VA examination for sinus conditions. At that time, the examiner reported that the Veteran did not have a diagnosis of a sinus condition and had no history of diagnosis of a sinus condition. The examiner noted that climate changes associated with change of duty stations have been documented to affect sinuses, however the present examination showed no objective evidence to render a diagnosis of sinusitis. The Board notes that in May 2017 the Board remanded the Veteran's appeal in part so that additional private treatment records from S. Healthcare, purported to show a diagnosis of sinusitis, could be requested and obtained. The Veteran was sent a letter requesting that he submit, or authorize VA to obtain, such records but the Veteran did not do so. Although the Veteran is competent to attest to what a physician has told him about his diagnosis, the Board finds that the objective medical evidence of record (showing no current sinusitis diagnosis) cited above is of greater probative value, as it based on a medical examination of the Veteran and a clinical review of the Veteran's prior history. With no current diagnosis of sinusitis or any other sinus condition, the Veteran fails to meet the first requirement for service connection. Accordingly, entitlement to service connection for sinusitis is not warranted. III. Increased Rating for Myocardial Infarction Pertinent Law and Regulations Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). By a September 2005 rating decision, the Veteran was service connected for status post myocardial infarction, having experienced the myocardial infarction during service in 2004. The Veteran's disability is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7006, which provides that a 10 percent rating is warranted for history of documented myocardial infarction, resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 7 METs, but not greater than 10 METs; or when continuous medication is required. A 30 percent rating is warranted for a history of myocardial infarction resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 5 METs, but not greater than 7 METs; or evidence of cardiac hypertrophy or dilatation on electrocardiogram., echocardiogram., or X-ray. A 60 percent rating is warranted for a history of myocardial infarction resulting in more than one episode of acute congestive heart failure in the past year; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3 METs, but not greater than 5 METs; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Finally, a 100 percent rating is warranted for a history of myocardial infarction resulting in chronic congestive heart failure; or resulting in dyspnea, fatigue, angina, dizziness, or syncope due to a workload of 3 METs or less; or left ventricular dysfunction with an ejection fraction of less than 30 percent. For rating diseases of the heart, 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. 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. Analysis The Veteran filed a claim of entitlement to an increased rating for a heart condition on May 13, 2011. In June 2012, the RO granted an increased rating of 10 percent from the date of the claim, based on the fact that the Veteran required continuous medication to control the symptoms of the heart condition. As that increase did not represent a full grant of benefits sought, the Veteran's appeal was continued. In an October 2016 rating decision, the RO granted an increased rating of 60 percent disabled, effective September 19, 2016, based on the results of an examination. The Veteran currently seeks an increase on both the rating of 10 percent disabled from May 13, 2011 and the rating of 60 percent disabled from September 19, 2016. The Veteran underwent a heart examination with a private physician in August 2011. At that time, the examiner reported that the Veteran did not experience angina, shortness of breath, fatigue, dizziness, or syncope attacks as a result of his heart condition. The Veteran reported no congestive heart failure and had no history of rheumatic heart disease. He had not had a heart valve replacement, a coronary bypass, an angioplasty, a cardiac transplant, a cardiac pacemaker implant, or an Automatic Implantable Cardioverter Defibrillator (AICD). His treatment was amlodipine, 5mg daily, aspirin, 81mg daily, and nitrostat, .4mg as needed for chest pain. The Veteran reported that fatigue limited his ability to work out. Examination of the heart did not reveal any evidence of congestive heart failure, cardiomegaly, or cor pulmonale. The examiner did not identify the presence of cardiac hypertrophy or dilatation. The Veteran was scheduled for a stress test related to this examination, but did not attend the appointment. Medical records subsequent to the August 2011 examination provide a similar picture. In March 2012, the Veteran was seen at P. N. Medical Center. At that time, heart rate and rhythm were normal. Heart sounds were normal. No gallop, pericardial friction, or murmurs were heard. No additional symptoms were evident until the Veteran's June 13, 2016 RO hearing. At that time, he reported that he could climb a maximum of two flights of stairs before having problems due to shortness of breath. He also reported that he used a riding lawnmower to mow his back yard. To mow his smaller front yard, he used a push mower but had to take frequent breaks that sometimes included taking a nap. The Veteran underwent a new examination in September 2016. The diagnosis of status post myocardial infarction was continued at that time. The examiner noted that the Veteran had intermittent palpitations. He had not had congestive heart failure, a heart valve condition, or any infectious cardiac conditions, including active valvular infection, endocarditis, pericarditis, or syphilitic heart disease. He had no other hospitalizations for the treatment of heart conditions. His heart rate was 68 and he had regular rhythm, normal heart sounds and peripheral pulses, clear auscultation of the lungs, and no peripheral edema. He had no scars or other pertinent physical findings. At that time, left ventricular ejection fraction was 64 percent. An interview-based METs test revealed that the Veteran reported dyspnea, fatigue, angina, and dizziness at greater than 3, but no greater than 5 METs-consistent with such activities as light yard work (i.e., weeding), mowing the lawn, and brisk walking. In August 2017, the Veteran underwent an additional examination. The examiner noted a diagnosis of status post myocardial infarction as well as an additional diagnosis of hypertensive heart disease, related to hypertension. The examiner noted that the Veteran required continuous medication for control of the heart condition, specifically aspirin as an anticoagulant and HCTZ to maintain blood pressure. The examiner reported that the Veteran had not had congestive heart failure, had not had a cardiac arrhythmia, had not had a heart valve condition, and had not had any infectious cardiac conditions such as active valvular infection, endocarditis, pericarditis, or syphilitic heart disease. Heart rate was 60 and both heart sounds and peripheral pulses were normal. There was no peripheral edema and no scars or other pertinent physical findings related to the condition. There was evidence of cardiac hypertrophy and evidence of cardiac dilatation. Left ventricular ejection fraction was 65 percent. The Veteran reported dyspnea and fatigue at greater than 5, but no greater than 7 METs-a level consistent with activities such as walking one flight of stairs, golfing without a cart, mowing the lawn, or heavy yard work. The examiner reported that the heart condition did not impact the Veteran's ability to work. The Board notes that an exercise test could not be accomplished, as the examiner noted that such testing was not without significant risk to the Veteran. Based on the medical evidence of record, from the May 13, 2011 examination until the June 13, 2016 RO hearing, the Veteran's service-connected heart condition was not manifested by dyspnea, fatigue, angina, dizziness, or syncope with METs levels greater than 5 but no greater than 7, nor was there evidence of acute or chronic congestive heart failure, hypertrophy or dilatation; however the Veteran did require continuous medication to manage the condition. This symptomatology is most closely approximated by the assignment of the current 10 percent rating. In the June 13, 2016 RO hearing, the Veteran described shortness of breath and fatigue when climbing stairs and mowing the lawn. Although the Veteran, as a layperson, is not competent to make a medical diagnosis, he is competent to report observable symptoms. The symptoms the Veteran described at the hearing are similar to those recorded at the September 2016 examination. At the September 2016 examination, the Veteran's symptoms reflected a rating of 60 percent disabled, due to dyspnea, fatigue, angina, dizziness, or syncope due to a workload of greater than 3 METs, but not greater than 5 METs. Resolving all doubt in the Veteran's favor, it is reasonable to believe, based on the Veteran's testimony, that he was experiencing symptoms reflective of a level of 60 percent disabled at the June 13, 2016 hearing as well. Therefore, a rating of 60 percent disabled is warranted from that date. For the Veteran to receive a higher rating of 100 percent disabled, the medical evidence would need to show either that he experienced chronic congestive heart failure; he experienced dyspnea, fatigue, angina, dizziness, or syncope due to a workload of 3 METs or less; or he experienced left ventricular dysfunction with an ejection fraction of less than 30 percent. The medical record indicates that the Veteran has never experienced congestive heart failure. At a maximum, he has experienced the symptoms listed above due to a workload of greater than 3 METs. Throughout his medical history, he has not experienced a left ventricular ejection fraction of less than 64 percent. Accordingly, a higher rating of 100 percent disabled is not warranted for any point during the claim period. The Veteran's heart condition has been manifested by symptoms warranting a rating of 10 percent from the date of the claim-May 13, 2011-to the date of the RO hearing-June 13, 2016. From June 13, 2016, the heart condition has been manifested by symptoms warranting a rating of 60 percent disabled. The Board notes that at the August 2017 examination, the examiner determined that the Veteran had a diagnosis of hypertensive heart disease, secondary to hypertension. By a September 2017 rating decision, the RO granted the Veteran entitlement to service connection for hypertension. The Board has considered whether a separate compensable rating is warranted for hypertensive heart disease, but observes that the rating criteria for such disability mirror those of myocardial infarction, and that the assessment of the August 2017 VA examiner took into account the symptoms of both disabilities in noting above-referenced estimated METs levels. See 38 C.F.R. § 4.104, Diagnostic Codes 7006, 7007. Thus, granting a separate rating for hypertensive heart disease in addition to myocardial infarction would constitute pyramiding, which is contrary to VA regulations. See 38 C.F.R. § 4.14. ORDER Entitlement to service connection for sinusitis is denied. A disability rating in excess of 10 percent for status post myocardial infarction, prior to June 13, 2016, is denied. A disability rating of 60 percent, but no higher, for status post myocardial infarction is granted from June 13, 2016. ____________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs