Citation Nr: 1805430 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-10 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating in excess of 10 percent for coronary artery disease, ischemic heart disease with stents and in excess of 60 percent from January 19, 2016. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD T. Davis, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1971, including service in the Republic of Vietnam. Awards included the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) from a July 2011 rating decision of the of the Department of Veterans Affairs (VA) Regional Office (RO) on New York, New York. In March 2011, the RO sent the Veteran a letter alerting him that his case was identified as a "potential Nehmer class-member case" based on the addition of ischemic heart disease to the list of diseases presumptively associated with exposure to certain herbicide agents used in Vietnam. In the July 2011 rating decision, the RO granted service connection for coronary artery disease, ischemic heart disease with stents [hereinafter coronary artery disease] and assigned a 10 percent disability rating, effective November 16, 2001. The Veteran disagreed with the effective date and initial rating assigned. In April 2014, the RO issued a notice of decision, enclosing a February 2014 rating decision, which implemented the award of the earlier effective date of April 11, 2001 for the grant of service connection for coronary artery disease and continued the initial 10 percent disability rating. In March 2014, the Veteran perfected this appeal to the Board. In November 2015, the Board found that the Veteran was not entitled to an effective date earlier than April 11, 2001. In that same decision, the issue of entitlement to higher initial rating for coronary artery disease was remanded for additional development, to include obtaining outstanding VA treatment records and scheduling the Veteran for a new VA examination to ascertain the present severity of his disability. The Board notes the during the appeal period, a February 2016 rating decision increased the evaluation of coronary artery disease from 10 percent disabling to 60 percent disabling, effective January 19, 2016. FINDINGS OF FACT 1. Prior to January 19, 2016, the Veteran's coronary artery disease was manifested by a workload of greater than 7 METs, without evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray, and without evidence of acute or chronic congestive heart failure. 2. From January 19, 2016 to the present, the Veteran's coronary artery disease was manifested by a workload of no less than 3 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; by left ventricular dysfunction with an ejection fraction no less than 30 percent; and without a showing of chronic congestive heart failure. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for coronary artery disease and in excess of 60 percent from January 19, 2016, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to notify and Assist The Veteran asserts that he is entitled to a higher rating for his service connected coronary artery disease. In the November 2015, the Board remanded this case to obtain private treatment records and to obtain a VA examination. The VA examination took place in January 2016 and has been associated with the record. The VA sent a letter to the Veteran on December 30, 2015, requesting the submission of additional evidence, to include records from his private cardiologist. However, the Veteran neither provided a response nor submitted additional evidence. Therefore, private treatment records were not obtained. Nonetheless, the VA obtained VA treatment records and associated them with the claims file on December 29, 2015. Thus, VA made reasonable efforts to identify and obtain relevant records in support of the claims. 38 U.S.C.A. § 5103A (a), (b) and (c). Neither the Veteran nor his representative has raised any other issues with VA's compliance with its duties to notify and assist the Veteran. 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). Applicable Law and Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Since service connection was established effective in April 2001, the Veteran's coronary artery disease has been rated as 10 percent disabling and increased to 60 percent disabling for the period beginning January 19, 2016, under 38 C.F.R. § 4.104 , Diagnostic Code 7005, for arteriosclerotic heart disease (coronary artery disease). Under this Diagnostic Code, a 10 percent rating is warranted where a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, where continuous medication is required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, where there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray. A 60 percent rating is warranted where there has been 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, where there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure; or, a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. VA revised the regulation that pertains to the evaluation of specified cardiovascular disorders, those rated under Codes 7000 through 7007, 7011, and 7015 through 7020, effective from October 6, 2006. See 38 C.F.R. 4.100. The revised regulation did not alter the rating criteria under Diagnostic Codes 7005 as outlined above; however, it contains the following new provisions: (1) in all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained; (2) even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis; (3) if left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability. After applying the relevant evaluation criteria to the facts of this case, the Board finds that a rating for the service-connected disability in excess of 10 percent prior to January 19, 2016 and in excess of 60 percent thereafter is not warranted. Prior to January 19, 2016 Regarding the period prior to January 19, 2016, in order to meet the criteria for the next higher rating, or 30 percent, the evidence must show that the Veteran's coronary artery disease is manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or that there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray. The medical evidence does not show that these criteria have been met. Treatment records from Good Samaritan hospital dated July 1997 thru April 2001 show that the Veteran underwent cardiac cathterization on April 12, 2001. However, there was no evidence of cardiac hypertrophy or cardiac dilation. An echocardiogram on May 3, 2001 provided evidence of a normal LVEF of 60 percent. Medical evidence from the Hudson Valley VA Medical Center dated January 2000 to June 2001, show evidence of a coronary artery disease diagnosis with stent placement on October 24, 2001. Private treatment records from Columbia Presbyterian Center, dated May thru November 2001, demonstrate no evidence of cardiac dilation or hypertrophy, although coronary artery disease, and angina status post stent are noted. The Veteran underwent several VA examinations in 2002. There was a diagnosis of coronary artery disease with stent placement, and a history of angina, fatigue, dizziness and syncope, but no evidence of cardiac hypertrophy or cardiac dilation. A VA examination performed in November 2003 provided evidence of coronary artery disease with 3 stents. There was no myocardial infraction noted. A workload of 8 Mets resulted in dyspnea, fatigue, angina, dizziness, or syncope. There was no evidence of cardiac hypertrophy or cardiac dilation A DBQ was provided by a VA examiner, Dr. R, dates April 2001. The Veteran's coronary artery disease diagnosis was confirmed. However, no evidence of congestive heart failure, cardiac hypertrophy or cardiac dilation was noted. The Veteran had a workload of greater than 7 to 10 METs with dyspnea and his LVEF was 72 percent. In addition, Social Security Administration records are also of file. They show no evidence of cardiac hypertrophy or cardiac dilation or that a workload less than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope. The foregoing outpatient and examination findings do not show that the Veteran's coronary artery disease meets or approximates the criteria for a 30 percent or higher rating for the period prior to January 19, 2016. Although the Veteran competently discussed intermittent periods of fatigue or chest pain, the objective evidence demonstrates that when measured, his workload scores were higher than 7 METs, and he was not assessed with cardiac hypertrophy or dilation. With respect to higher ratings, at no time during the appeal period prior to January 19, 2016 had the Veteran been assessed with acute or chronic congestive heart failure or a LVEF of 50 percent or less. From January 19, 2016 to the present As noted above, from January 19, 2016 to the present day, the Veteran's heart disease has been rated 60 percent disabling. The only higher rating available is a 100 percent rating. To meet the criteria for the next higher rating of 100 percent, the evidence must show that the Veteran's coronary artery disease is manifested by a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or that there is LVEF of less than 30 percent, or that there is chronic congestive heart failure. Such criteria are not shown. Indeed, The Veteran underwent a VA examination on January 19, 2016. He reported experiencing occasional chest pain lasting less than one minute and taking daily medication to manage his symptoms. He denied dyspnea, cough, or chest congestion... Upon examination, heart rhythm and sounds were normal with no murmur detected. The Veteran's heart size was normal and the examiner estimated a METs level at great than 3 but less than 5, based on reported physical and daily activities. An echocardiogram (ECHO) showed mild concentric hypertrophy and a LVEF of 71 percent. The examination did not reveal any evidence of congestive heart failure or cardiomegaly. Based on the results of this examination the RO increased the disability rating from 10 percent to 60 percent, effective January 19, 2016. Post January 19, 2016, there is no medical evidence of a workload of 3 METs or less, that there is LVEF of less than 30 percent, or that there is chronic congestive heart failure. Significantly, the January 2016 VA Examiner, checked a box indicating that the Veteran hoes not have congestive heart failure. He also remarked that the Veteran's last exercise test was done in August 2001 and it was normal and LVEF was 66 percent. Neither dilation nor hypertrophy was noted. The foregoing medical evidence demonstrates that the Veteran's coronary artery disease has not manifested by a workload of 3 METs or less at any time during the period under review, that LVEF is less than 30 percent at any time during the period under review, or that there is chronic congestive heart failure. Therefore, the criteria for a 100 percent rating have not been approximated. In conclusion, the evidence demonstrates that the Veteran's coronary artery disease is appropriately rated as 10 percent disabling for the period prior to November 29, 2010 and as 60 percent disabling for the period beginning November 29, 2010. In arriving at the determination herein, the Board has considered all the evidence consistent with the Court's decision in Fenderson. As the preponderance of the evidence is against the claim for a higher rating, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107 (b). ORDER Entitlement to an initial rating in excess of 10 percent for coronary artery disease, ischemic heart disease with stents and in excess of 60 percent from January 19, 2016 to the present day is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs