Citation Nr: 1805089	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  11-15 981	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to a rating in excess of 30 percent for coronary artery disease (CAD).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

K. Hughes, Counsel



INTRODUCTION

The Veteran served on active duty from March 1965 to January 1969, including service in the Republic of Vietnam.  He died in August 2017.  

The appellant, who is the Veteran's surviving spouse, filed a claim for Dependency and Indemnity Compensation (DIC) and accrued benefits in September 2017.  In a November 2017 decisional letter, the RO granted the appellant's request to be substituted (under 38 U.S.C. § 5121A) in the Veteran's appeal.  Accordingly, the appellant has been substituted as the claimant for the purposes of the increased rating issue on appeal.  In this regard, the appellant's appeal in her own claim for accrued benefits (under 38 U.S.C. § 5121) is rendered moot by her substitution (under 38 U.S.C. § 5121A).  Substitution under 38 U.S.C. § 5121A is potentially more favorable to the appellant because it allows her to continue to submit evidence in support of the appealed issue, whereas the evidence in an accrued benefits claim under 38 U.S.C. § 5121 is limited to evidence in the claims file as of the date of a veteran's death.

The case was originally before the Board on appeal from rating decisions by the St. Paul, Minnesota Department of Veterans Affairs (VA) Regional Office (RO) dated in March 2010 (in pertinent part, denied service connection for COPD) and November 2010 (granted service connection for CAD, rated at 10 percent from November 20, 2009, the date of the Veteran's claim for service connection).  An interim June 2014 rating decision assigned an increased 30 percent rating for CAD, effective November 20, 2009.  The Board remanded the claims on appeal in March 2014 (when it was also determined that the matter of entitlement to a TDIU had been raised in the context of the Veteran's increased rating claim) and September 2014 for further development and, in May 2015, issued a decision which denied the claims (service connection for COPD, an increased rating for CAD and TDIU). 

The Veteran appealed the May 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2016 Order, the Court vacated the May 2015 Board decision and remanded the matters for readjudication consistent with the instructions outlined in a Joint Motion for Partial Remand (Joint Motion) by the parties.  

In January 2017, the Board remanded the matters to the RO for additional development necessary to ensure compliance with the terms of the September 2016 Joint Motion.  The additional development ordered in the January 2017 Board remand has been completed and the claim for an increased rating for CAD, including TDIU, has been re-certified to the Board.  

Upon consideration of additional evidence obtained pursuant to the January 2017 Board remand, an interim July 2017 rating decision granted service connection for COPD and assigned a 100 percent rating from November 20, 2009, the date of claim.  As this represents a complete grant of the Veteran's claim of service connection for COPD, this issue is no longer on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

Finally, regarding the claim for TDIU, as was explained in the January 2017 Board remand, this issue was raised as part of the Veteran's claim for an increased initial rating for CAD.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Although the July 2017 rating decision granted service connection for COPD and assigned a 100 percent rating from November 20, 2009, the date of claim; the Veteran may still be assigned a TDIU rating based on his service-connected CAD.  See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 249-251 (2010); Bradley v Peake, 22 Vet. App. 280, 292-93 (2008).  Accordingly, the matter of entitlement to a TDIU rating based on CAD remains on appeal and will be addressed herein.  


FINDING OF FACT

The Veteran's CAD was not manifested by more than one episode of acute congestive heart failure in the past year, a workload of 5 METs (metabolic equivalents) or less, or left ventricular dysfunction with an ejection fraction of 50 percent or less.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 30 percent for CAD have not been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.104, Diagnostic Code (Code) 7005 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

With respect to the issues addressed herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. § 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

As noted in the Introduction, the Board remanded this matter in January 2017 for additional development necessary to ensure compliance with the terms of the September 2016 Joint Motion.  Specifically, the AOJ was instructed to schedule the Veteran for a VA examination to determine the current severity of his CAD and the examiner was asked to "afford the Veteran appropriate testing (i.e., echocardiogram, stress testing) to obtain current ejection fraction and METS readings, or provide an explanation for why the testing cannot be performed along with an estimation of such readings."  

Pursuant to the January 2017 Board remand, a July 2017 Disability Based Questionnaire (DBQ) for heart conditions, based on a review of available medical records, shows a left ventricular ejection fraction based on March 2017 echocardiogram and interview-based METS test results based on a November 2016 interview.  The examiner explained that using the Acceptable Clinical Evidence (ACE) process using the existing medical evidence provided sufficient information on which to prepare the DBQ and an examination will likely provide no additional relevant evidence.  The examiner further explained that "[e]xercise stress testing is not required as part of the Veteran's current treatment plan and this test is not without significant risk." 

After review of the development accomplished by the AOJ, and as the record shows that the Veteran entered hospice care in May 2017 with end stage COPD and died in August 2017, the Board concludes there has been substantial compliance with the January 2017 remand instructions (and the instructions of the September 2016 Joint Motion contemplated by that remand) and no further action is necessary.  See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)).  In this regard, it is noted that a February 2010 VA examination report notes that "METS level based on function status will not provide an accurate estimate of this veterans heart status.  Veteran is sever[ely] limited by his lung function" and a November 2011 VA examination report notes the "Veteran [is] physically limited due to lung disease [and] an exercise METS will underestimate this Veterans heart function."  


Legal Criteria, Factual Background, and Analysis

The Board has reviewed all of the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The November 2010 rating decision that is the subject of this appeal granted service connection for CAD and assigned an initial rating of 10 percent pursuant to 38 C.F.R. § 4.104, Code 7005, effective November 20, 2009, the date of receipt of the Veteran's claim.  A subsequent June 2014 rating decision assigned an increased 30 percent rating for CAD, effective November 20, 2009.  

Code 7005 provides the rating criteria for arteriosclerotic heart disease (coronary artery disease).  A 30 percent rating is assigned when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  A 60 percent rating is assigned for more than one episode of acute congestive heart failure in the past year, or; when 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 assigned for chronic congestive heart failure; 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.  38 C.F.R. § 4.104.

Review of the record shows that the preponderance of the evidence is against the claim for an initial rating in excess of 30 percent for the Veteran's CAD throughout the appeal period.  First, the evidence does not show that the Veteran had more than one episode of acute congestive heart failure in the past year (and congestive heart failure has not been alleged).  Rather, treatment records and VA examination reports are devoid of any evidence of congestive heart failure; VA examiners in February 2010 and November 2011 indicated the absence of evidence of any new CAD since the 2007 angiogram.  In addition, the November 2011, May 2014 and July 2017 VA examiners noted the Veteran does not have congestive heart failure.  Second, there is no evidence that the Veteran's CAD was manifested by a workload of less than 5 METs.  In this regard, although the May 2014 VA examiner provided an interview-based METs level of greater than 3-5 productive of dyspnea, fatigue and dizziness, the examiner explicitly noted that the "predominant" effect on the Veteran's METs level was his COPD (for which service connection has been granted and rated 100 percent throughout the appeal period).  Further, the July 2017 VA examiner provided an interview-based METs level due solely to the heart condition of greater than 7-10 productive of dyspnea and fatigue.  Finally, the evidence does not show that the Veteran's coronary artery disease was manifested by left ventricular dysfunction with an ejection fraction of 50 percent or less.  Rather, his ejection fraction was 67 percent in February 2010 (based on angiogram completed in 2007 and "[n]o evidence coronary artery disease has progressed or worsened since last angiogram completed in 2007") as well as November 2011 and May 2014 (also based on 2007 test) and 60 percent based on echocardiogram in March 2017.  Similarly, private treatment records show ejection fraction of 82 percent ("though it appeared to be more in the range of 65 to 70%.  The 82% appeared to be more a post-PVC beat") as noted on December 2011 Discharge Summary in connection with cardiac evaluation and 60 percent on November 2012 private Echocardiogram Report (which notes no significant change when compared to December 2011 study).  In sum, the evidence of record does not support the assignment of an evaluation in excess of 30 percent for the Veteran's CAD at any time during the course of the appeal. 

TDIU

It is the established policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15.

A TDIU may be assigned if the schedular rating is less than total when it is found that the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a).  If there is only one such service-connected disability, it must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, at least one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. Id. Where applicable, disabilities resulting from a common etiology are considered a single disability for the purpose of satisfying the percentage standards set forth in 38 C.F.R. § 4.16(a).

Where the schedular criteria set forth above are not met, but a veteran is nonetheless found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b).

As consideration of TDIU in this context is based on CAD which was rated 30 percent, the Veteran did not meet the requirements for a schedular TDIU based on his CAD.  In the instant case, the RO declined referral for consideration of an extraschedular TDIU.  The Board is required to obtain the Compensation Service Director's decision before awarding extraschedular TDIU benefits in the first instance, see Bowling v. Principi, 15 Vet. App. 1, 10 (2001).

However, the Board likewise finds that referral to the Compensation Service Director is not warranted as the record does not support a conclusion that there was plausible evidence in the record that the Veteran was unable to secure or follow a substantially gainful occupation solely due to his service-connected CAD.  

The 2014 Board remand found that an October 2012 statement of the Veteran "raised the issue of unemployability in the context of his service-connected heart disease claim."  Upon further review of the Veteran's October 9, 2012, statement, however, it does not appear that the Veteran was asserting that TDIU was warranted due solely to CAD.  Instead, the Veteran was stating that he had been told by medical providers that he was unemployable due to multiple medical problems, not just his heart disability, as his statement reads, "Dr. C.[], the VA doctor who evaluated my claim for heart disease on 12-29-11 concluded that due to the amount of health issues that I have been dealing with over the last several years that it is evidence that I would never be able to work again."  (emphasis added).  This conclusion is supported by the fact that in his December 2011 claim for TDIU, he indicated that he was unable to work due to multiple disabilities:  "lung disease due to asbestos and Agent Orange[,] hearing loss[,] ischemic heart disease."  

The medical evidence of record does not include plausible evidence that the Veteran was unable to secure or follow a substantially gainful occupation solely due to his service-connected CAD.  The November 2011, May 2014 and July 2017 VA examiners noted that the Veteran's heart condition did not impact his ability to work.  The November 2014 VA examiner noted that it was more likely than not that his non-service connected (at that time) COPD was the principal cause of his inability to maintain gainful employment as his COPD was severe, longstanding, and required oxygen, while his CAD had been relatively stable over time.  See also May 2017 VA respiratory conditions examination report.  These finding are also supported by private treatment records which attribute most of the Veteran's symptoms to his "severe lung disease."  See, e.g., March 2012 treatment report from Health East Care System.  Records from the SSA also note that while the Veteran had a diagnosis of CAD, the primary limiting condition was not cardiac, but pulmonary.  

For the foregoing reasons, the preponderance of the evidence is against the claim for an evaluation in excess of 30 percent for CAD.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

An initial rating in excess of 30 percent for coronary artery disease is denied.




____________________________________________
M.C. GRAHAM
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs