Citation Nr: 1805363	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  12-15 941	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to an initial rating in excess of 30 percent for coronary artery disease prior to September 19, 2016.

2. Entitlement to service connection for a bilateral lower extremity disorder, to include as due to exposure to herbicide agents and/or as secondary to service-connected coronary artery disease.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

M. M. Celli, Counsel


INTRODUCTION

The Veteran served on active duty from August 1967 to September 1970.  He is the recipient of numerous awards and decorations, include the Combat Infantryman Badge.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2010 and March 2015 by a Department of Veterans Affairs (VA) Regional Office (RO).

In July 2015, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record on appeal.

In October 2015, the Board remanded the case for additional development.  While on remand, a June 2017 rating decision awarded a 100 percent rating for the Veteran's service-connected coronary artery disease, effective September 19, 2016.  As such is the highest possible rating for such disability, the Board has recharacterized the issue as shown on the title page.  The case now returns for further appellate review.

The issue of entitlement to service connection for a bilateral lower extremity disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDING OF FACT

For the appeal period prior to September 19, 2016, the Veteran's service-connected coronary artery disease was not manifested by more than one episode of acute congestive heart failure in a year, a workload of greater than three metabolic equivalents (METs) but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 30 percent for coronary artery disease prior to September 19, 2016, are not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Furthermore, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist in connection with the claim decided herein.  See Scott, supra (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).

II. Analysis

The Veteran asserts that the symptoms associated with his service-connected coronary artery disease (CAD) meet the criteria for a disability rating in excess of 30 percent prior to September 19, 2016.  

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  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).  Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Fenderson at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's CAD is evaluated as 30 percent disabling as of the date of service connection, i.e., June 19, 2014, and 100 percent disabling as of September 19, 2016.  As such, only the period dating from the grant of service connection to September 19, 2016, remains on appeal.   See AB v. Brown, 6 Vet. App. 35 (1993).  During this period, the Veteran's CAD is currently rated as 30 percent disabling under Diagnostic Code 7005 pertaining to arteriosclerotic heart disease.  

Diagnostic Code 7005 provides a 30 percent disability rating 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 warranted where there is more than one episode of acute congestive heart failure (CHF) 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 where there is chronic CHF, or a workload of 3 METs or less result in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent.  

Pertinent to the evaluation of heart disabilities, one MET 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 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.  38 C.F.R. § 4.104.

Based on these criteria, the evidence must show more than one episode of acute CHF within a year, a workload of greater than 3 METs but not greater than 5 METs, or ejection fraction of 30 to 50 percent to warrant a higher disability rating during the period on appeal.  38 C.F.R. § 4.104, Diagnostic Code 7005.  In October 2015, the Board remanded the issue because the treatment records were inconsistent in demonstrating whether the Veteran experienced episodes of CHF.  Specifically, the Board directed that the AOJ obtain a retrospective medical opinion to determine whether, and if so, when it could be concluded that the Veteran experienced episodes of CHF.  See Chotta v. Peake, 22 Vet. App. 80 (2008).  

Upon review, the Board finds the clinical evidence does not support entitlement to a disability rating in excess of 30 percent for CAD prior to September 19, 2016.  38 C.F.R. § 4.104, Diagnostic Code 7005.  First, the medical evidence does not reflect a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope.  Specifically, the February 2015 VA examination report demonstrates that a workload of greater than five METs but not greater than 7 METs resulted in dyspnea and fatigue.  Additionally, the medical evidence does not demonstrate ejection fraction of 30 to 50 percent.  In this regard, a June 2014 echocardiogram reflects an ejection of 55 to 60 percent with normal left ventricular size, thickness, and function.  Similarly, the February 2015 VA examination report shows an ejection fraction of 55 to 60 percent, as does a July 2016 VA echocardiogram.  

Additionally, as noted in the October 2015 Remand, VA treatment records are inconsistent with respect to whether the Veteran experienced acute episodes of, or chronic, CHF during the appeal period.  Specifically, VA treatment records dated in June 2014 show an investigation for CHF and right-sided heart failure; however, the attending cardiologist diagnosed atypical chest pain and dyspnea that occurred with coughing and not exertion, with no evidence of ischemia.  A July 2014 VA outpatient treatment record shows a diagnosis of mild CHF secondary to pulmonary hypertension, but no order for hospitalization.  In August 2014, one cardiologist noted right heart failure and diagnosed acute decompensated heart failure with preserved ejection fraction.  However, a second cardiologist reviewed a normal electrocardiogram, ruled out CHF, and attributed the symptoms to fluid volume overload.  In September 2014, the Veteran underwent placement of a single coronary artery stent, and a May 2015 VA treatment record shows a finding that CHF was mild and right-sided.  In June 2015, a VA mental health physician reported that the Veteran had been struggling with CHF and right-sided heart failure for which he was hospitalized three times in 2014, whereas a September 2015 VA treatment record indicates there was no evidence of CHF.  Finally, a September 2016 VA treatment record indicates that the Veteran's last CHF exacerbation was due to involuntary, poor compliance with CHF management.  

Upon review, the Board again finds the records to be highly inconsistent with respect to the presence and/or diagnosis of CHF and, therefore, does not assign them significant probative value when rating the Veteran's disability.  Additionally, the Board does not afford the June 2015 mental health report any probative weight as the physician did not provide a rationale in support of the opinion.  Furthermore, it is not shown by the record that the opining physician specialized in cardiac medicine, had the medical knowledge with which to provide such an opinion, or reviewed the Veteran's pertinent treatment records.  

In contrast, the Board finds a May 2017 VA physician's opinion deserves significant probative value when rating the Veteran's service-connected CAD as it reflects consideration of all relevant facts and includes a detailed rationale for the conclusions reached with citation to specific medical records.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").  In pertinent part, the VA physician found the Veteran had not experienced episodes of acute congestive heart failure during the appeal period nor did the medical records reflect demonstrative test results for chronic CHF.  The VA physician noted the term "CHF" in VA histories and clinical notes; however, he found that there was no diagnosis or impression of CHF rendered during the appeal period.  

In this regard, the May 2017 VA physician stated that CHF was more likely than not characterized by cardiomegaly noted on chest X-ray and decreased ejection fraction on echocardiogram.  Applying this knowledge to the examination evidence, the VA physician noted the treatment records showed heart failure had preserved ejection fraction, which was uncommon in CHF.  He also highlighted the normal chest X-rays and ejection fractions on the September 2016 examination report.  The VA physician found that he could not answer whether the Veteran experienced one or more episodes per year of CHF.  Furthermore, the VA physician opined that the Veteran did not have chronic CHF, and as such, he could not answer when it was first documented that the Veteran had chronic CHF without resorting to speculation.  The VA physician found there was not a longitudinal trend of diagnoses or impressions for CHF; in fact, there was insufficient examination evidence documenting hospitalization for CHF, which indicated that chronicity could not be demonstrated.  As a result, the Board finds the Veteran did not experience more than one episode of acute congestive heart failure during the relevant appeal period, and therefore, an initial rating in excess of 30 percent is not warranted for CAD under Diagnostic Code 7005.  38 C.F.R. § 4.104.  

The Board acknowledges the Veteran's competent lay statements describing his symptoms and their effects on his daily life and occupation.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In particular, VA treatment records reflect the Veteran's reports of chest pain, dyspnea, fatigue, and restricted movement.  Here, however, the Board finds the objective medical evidence deserves greater probative value, as it demonstrates consideration of the Veteran's lay statements and includes the information necessary to rate the Veteran's disability under the rating criteria.  Specifically, the rating criteria under Diagnostic Code 7005 involve the findings from objective medical testing and the diagnosis of CHF, which the Board finds is not the type of disability that is subject to lay diagnosis.  Hence, while the Veteran is competent to report the symptoms he experiences, he is not competent to diagnose such a disability, as he has not been shown to have the medical training necessary to do so.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions).  

The Board also notes that, in a December 2017 Appellant's Post-Remand Brief, the Veteran's representative asserted that an earlier effective date for the grant of 100 percent for CAD was warranted on the basis that the October 2015 Remand took notice of the indications of an increased disability.  As such, VA should have granted an earlier effective date because the Board had issued the Remand almost a full year prior to the award date.  However, as noted in the June 2017 rating decision, the effective date of an award is the date of receipt of claim, or the date on which the medical evidence factually shows that an increased evaluation is warranted, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.  As VA adjudicators are not permitted to substitute their own judgment on a medical matter, the Board's notation of the indications of a medical condition does not deserve probative value with respect to the existence of such a condition.  See Colvin v. Derwinski, 1 Vet. App. 171 (1991).  As a result, the Board finds the appropriate effective date for the grant of 100 percent is the date of the VA examination, which shows the Veteran's disability met the criteria for such a rating, includes competent medical evidence, and is later than VA's receipt of the claim.  

The Board has also considered whether further staged ratings are appropriate for the Veteran's service-connected CAD; however, the Board finds that the symptomatology referable to this disability has been stable during the period on appeal.  See Fenderson, supra.  Therefore, assigning further staged ratings is not warranted.

Neither the Veteran nor his representatives have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim.  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).  

Based on the above, the Board finds the probative evidence does not support a rating in excess of 30 percent for CAD prior to September 19, 2016.  38 C.F.R. § 4.104, Diagnostic Code 7005.  As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable.  See 38 U.S.C. 
§ 5107; 38 C.F.R. §§ 4.3, 4.7.  


ORDER

An initial rating in excess of 30 percent for coronary artery disease prior to September 19, 2016, is denied.


REMAND

Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

In October 2015, the Board remanded the claim for service connection for a bilateral lower extremity disorder to obtain a medical opinion as to the nature and etiology of any current disorder.  In September 2016, a VA nurse practitioner diagnosed venous insufficiency, varicose veins, and dependent edema of the bilateral lower extremities.  She further found there was no evidence in the service treatment records to suggest that the Veteran had these problems while in service.  In addition, the VA examiner opined that based on the echo results, CHF was not likely the cause of the Veteran's conditions.  The VA examiner stated that the Veteran's venous insufficiency in the lower extremities was most likely due to incompetent valves, obesity, and family history rather than CAD.  The VA examiner also explained that medical literature did not support CAD as an etiology of venous insufficiency.  

In May 2017 addendum opinions, which addressed the lower extremity conditions separately, a separate VA examiner, a physician, opined it was less than likely that the Veteran's left and right lower extremity conditions with venous insufficiency, swelling, and fluid retention were secondary to service-connected CAD.  The VA examiner stated it was impossible to pathophysiologically relate the two and that venous insufficiency and CAD were two separate and distinct disease entities.  According to the VA examiner, venous insufficiency is a disease of the venous system and is due to incompetent valves in the lower extremity venous system, which can be due to hereditary factors and caused/aggravated by obesity.  Comparatively, CAD is a disease of the arterial system in the heart and is due to blockage of the arteries in the heart.  

Initially, the Board notes the September 2016 VA examination report reflects diagnoses of venous insufficiency, varicose veins, and dependent edema.  As such, an adequate medical opinion must address the nature and etiology of each diagnosed condition.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication).
Although the VA examination report addresses the causation theory for venous insufficiency, the Board finds the VA examiner did not provide competent opinions concerning the diagnoses of varicose veins and dependent edema and whether those conditions were caused by the Veteran's service-connected CAD.  

In addition, the VA examiner did not provide a clear opinion addressing whether any bilateral lower extremity disorder, to include venous insufficiency, varicose veins, and a disorder related to dependent edema, was aggravated by the Veteran's service-connected CAD.  Notably, the VA examiner indicates that venous insufficiency can be aggravated by obesity, but he does not directly state whether CAD aggravated any of the diagnosed bilateral lower extremity disorders beyond the natural progression of those disorders.  As a result, remand for addendum opinions is warranted.     

Accordingly, the case is REMANDED for the following actions:

1. Forward the Veteran's electronic file, to include a copy of this Remand, to the May 2017 VA examiner, or an appropriate substitute if unavailable, for an addendum opinion as to the nature and etiology of any current bilateral lower extremity disorder, to include venous insufficiency, varicose veins, and a disorder related to dependent edema.  If the examiner finds additional examination is necessary, schedule the Veteran for a VA examination.  

After review of all the evidence, including the service treatment records, VA examination reports and treatment records, and lay statements, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that varicose veins and/or a disorder related to dependent edema is causally or etiologically related to any in-service event, disease, or injury, to include presumed exposure to herbicide agents.  

Additionally, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent probability or greater) that any bilateral lower extremity disorder is aggravated by the Veteran's service-connected coronary artery disease.  Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability.  For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology.

A complete rationale should be provided for any opinion or conclusion expressed.

2.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
	A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs