Citation Nr: 1804983 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-11 015A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) with cardiac arrhythmia, status post myocardial infarction and coronary artery bypass surgery from November 6, 2002 to prior to June 24, 2003, and an evaluation in excess of 60 percent from November 1, 2003 to January 23, 2006. 2. Entitlement to an initial compensable rating from July 18, 2003 to prior to July 12, 2011, and a rating in excess of 20 percent from July 12, 2011, for painful scars of the sternum and right leg, as residuals of coronary artery bypass surgery (to include right ankle and foot pain). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1967 to March 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before a Veterans Law Judge in June 2015. A transcript of the hearing is of record. While this Veterans Law Judge is no longer with the Board, the Veteran has since indicated that he does not desire a new hearing. Further, while the Veteran submitted evidence since the Board's November 2015 decision regarding his claim for an earlier effective date, that issue has been adjudicated and is no longer on appeal. FINDINGS OF FACT 1. Prior to June 24, 2003, the Veteran's coronary artery disease was treated by medication, including simvastatin; at no time has there been any finding of a workload of greater than 5 METs but less than 7 METs, or evidence of cardiac hypertrophy or dilatation on electro-cardiogram, echocardiogram, or X-ray. 2. During the period from November 1, 2003 to January 23, 2006, the Veteran's coronary artery disease was characterized by left ventricular dysfunction with an ejection fraction of 50 percent; neither chronic congestive heart failure, a workload of 3 METs or fewer, nor left ventricular dysfunction with an ejection fraction of less than 30 percent have been shown. 3. Prior to July 12, 2011, the Veteran's scar, residual of coronary artery bypass graft surgery, was not noted to be painful. 4. From July 12, 2011, the Veteran's four anterior trunk and right leg scars, residual of coronary artery bypass surgery, measured 2 x 17 centimeters, 10 centimeters, and 3 centimeters; they were noted to be linear and painful; however, none of them were noted to be unstable. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for coronary artery disease status post myocardial infarction and coronary artery bypass for the period prior to June 24, 2003, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005 (2017). 2. The criteria for a rating in excess of 60 percent for coronary artery disease status post myocardial infarction and coronary artery bypass for the period from November 1, 2003 to January 23, 2006, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005 (2017). 3. The criteria for an initial compensable rating for painful scars for the period prior to July 12, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017). 4. The criteria for a compensable rating for painful scars for the period from July 12, 2011, have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C. §§ 5103, 5103A (2014) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by way of letters to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The Board notes that this appeal was remanded by the Board in November 2015. The Board is now satisfied that there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the necessary records were obtained in compliance with the Remand instructions, and a new VA opinion was obtained, which the Board finds adequate for adjudication purposes. After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in September 2016. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim subject to this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Coronary Artery Disease In an August 2011 rating decision, the Veteran was granted service connection for coronary artery disease with a 10 percent rating. However, in August 2012, he submitted a Notice of Disagreement indicating that he sought an increase in his rating. For the period prior to June 24, 2003, the Veteran received a 10 percent disability rating for his coronary artery disease under 38 C.F.R. § 4.104, DC 7005 (addressing coronary artery disease). Under this Diagnostic Code, a 30 percent rating is assigned when there is evidence of workload of greater than 5 METs but less than 7 METs, or evidence of cardiac hypertrophy or dilation on electro-cardiogram, echocardiogram, or X-ray. 38 C.F.R. § 4.104, DC 7005 (2017). Based on the evidence of record, a rating in excess of 10 percent is not warranted prior to June 24, 2003. First, there is no evidence that the Veteran has had a workload of less than 7 METs for the period prior to June 24, 2003. Metabolic Equivalent of Task, or MET, represents a physiological measure used to determine what activity is appropriate for a person. Medical records for this time period do not contain a stress test or measurements of left ventricle function. However, readings which include an EKG from November 2002 and a chest x-ray from March 2003 show a normal heart. Moreover, the record reflects continuous medication. For example, the Veteran's medication list in November 2002, December 2002, and January 2003 included simvastatin and colestipol. Accordingly, a rating in excess of 10 percent for this period is not warranted. Next, for the period from November 1, 2003 to January 23, 2006, the Veteran received a 60 percent disability rating for his coronary artery disease under 38 C.F.R. § 4.104, DC 7005 (addressing coronary artery disease). Under this Diagnostic Code, a 100 percent rating is assigned for chronic congestive heart failure, or; workload of 3 METs or fewer results 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. Based on the evidence of record, a rating in excess of 60 percent is not warranted for the Veteran's coronary artery disease. Specifically, there is no clinical evidence that during this period reflecting that the Veteran has had congestive heart failure, a workload of 3 or fewer METs, or a left ventricle ejection fraction of less than 30 percent. The Board's November 2015 Remand noted that the medical records then available did not contain information sufficient to rate the Veteran's coronary artery disease symptoms from November 2002 to January 2006. As such, a retroactive examination was ordered. This examination was administered in August 2016 by a professional that did not treat the Veteran during the relevant dates. The examiner's addendum opinion stated that while there was no echocardiogram (EKG) done in the relevant time period, an EKG conducted in 2006 showed normal heart function. From this report, the Board infers that the Veteran did not experience symptoms during the period from November 2002 to January 2006; therefore, it is unlikely that the Veteran sought treatment for symptoms during this period. Thus, while the Veteran asserts in his notice of disagreement that his symptoms warrant a higher rating, the medical evidence shows that the Veteran's entitlement is limited to the 60 percent currently awarded. Painful Scars The Veteran is also seeking an increased rating for the scars he has that are related to his coronary artery disease, of which there are four, where each has been described as linear. Two of them measured 17 centimeters, and the other two measured 10 centimeters, and 3 centimeters. They are located on the Veteran's sternum and right leg. As such, DCs 7800 (scars of the head, face, or neck) and 7801 (deep and nonlinear), are not for application. DC 7802 is not for application because the Veteran's scars are linear. Therefore, the Veteran's only recourse for an initial compensable rating or a rating in excess of 20 percent is DC 7804. Under DC 7804, one or two scars that are unstable or painful are rated as 10 percent disabling. Three or four scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, the adjudicator must add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive a rating under this diagnostic code, when applicable. 38 C.F.R. 4.118 (2017). DC 7805, other scars (including linear scars) and other effects of scars, are to be evaluated under DCs 7800, 7801, 7802, and 7804. The DC criteria also instruct to evaluate any disabling effect(s) not considered in a rating provided under DCs 7800-04 under an appropriate DC. For the period prior to July 12, 2011, there is no indication that the Veteran's scars were unstable or painful. As such, the Veteran's current noncompensable rating is warranted. From that date, the Veteran's four scars were painful, but they were all well healed and stable. Thus, they merit the 20 percent rating currently received under DC 7804. While the Veteran reported infection and purulence from his chest scar several weeks after his surgery, this appears to be an isolated incident. As such, an increased rating is not warranted for either period on appeal for painful scars. Other Considerations In considering the appropriate disability rating, the Board has also considered the Veteran's statements that his coronary artery disease and painful scars are worse than the ratings he currently receives. Specifically, the Veteran indicates that because of his heart symptoms, he had to move from a two story house to a one story house. He also asserts that he has more than the four scars for which he is service connected. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of her service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to describe his symptoms, but he is not competent to assert that his symptoms require higher disability ratings than he receives. Such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that the Veteran's current rates accurately address her symptoms for the relevant periods. Next, an extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321 (b)(1) (2015). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court of Appeals for Veterans Claims explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. In this case, the Board has carefully compared the level of severity and symptomatology of the Veteran's coronary artery disease and painful scars, and finds that the Veteran's symptomatology is fully addressed by the rating criteria under which he is currently evaluated. In this regard, as noted above, the Veteran's current rating for his coronary artery disease contemplates the frequency and severity of his symptoms. Accordingly, the Board finds that the schedular rating criteria in this case are adequate to evaluate the Veteran's disabilities. It follows that referral for extraschedular consideration is not warranted. As a final matter, the Veteran has not raised the issues of entitlement to an increased rating on an extraschedular basis, nor has he disagreed with any aspect of his assigned TDIU, and they are not addressed in this appeal. Therefore, based on the evidence of record, an increased rating for the Veteran's coronary artery disease is not warranted, nor is one warranted for his service connected painful scars. As such, the appeal is denied. ORDER An initial rating in excess of 10 percent for coronary artery disease (CAD) with cardiac arrhythmia, status post myocardial infarction and coronary artery bypass surgery from November 6, 2002 to prior to June 24, 2003 is denied. A rating in excess of 60 percent for CAD with cardiac arrhythmia, status post myocardial infarction and coronary artery bypass surgery from November 1, 2003 to prior to January 23, 2006, is denied. An initial compensable rating from July 18, 2003 to prior to July 12, 2011, for painful scars of the sternum and right leg, as residuals of coronary artery bypass surgery (to include right ankle and foot pain), is denied. A rating in excess of 20 percent from July 12, 2011, for painful scars of the sternum and right leg, as residuals of coronary artery bypass surgery (to include right ankle and foot pain), is denied. __________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs