Citation Nr: 18143420 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 17-26 321 DATE: October 19, 2018 ORDER A rating in excess of 10 percent for coronary artery disease (CAD) prior to May 10, 2005 is denied. A 60 percent rating for CAD from May 10, 2005 through September 17, 2006 is granted. A rating in excess of 60 percent for CAD from May 4, 2011 is denied. REMANDED Entitlement to a temporary total disability rating for CAD based on convalescence prior to September 18, 2006. Entitlement to special monthly compensation (SMC) based on housebound status. Entitlement to a total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. Prior to May 10, 2005, CAD was not more nearly manifested by a metabolic equivalent (METs) workload of 7 or less or evidence of cardiac hypertrophy or dilatation. 2. From May 10, 2005 to September 17, 2006, CAD was more nearly manifested by left ventricular hypertrophy and more than one episode of congestive heart failure. 3. From May 4, 2011, CAD was not more nearly manifested by a workload of 3 METs or less, left ventricular ejection fraction of less than 30 percent, or chronic congestive heart failure. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent prior to May 10, 2005 for CAD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005. 2. The criteria for a 60 percent rating from May 10, 2005 to September 17, 2006 for CAD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005. 3. The criteria for an initial rating higher than 60 percent from May 4, 2011 for CAD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from September 1971 to March 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision which implemented the Board’s grant of service connection for CAD and assigned a 10 percent rating from August 5, 2004, a 100 percent rating from September 18, 2006, and a 60 percent rating from May 4, 2011. 1. Entitlement to a rating in excess of 10 percent for CAD. The Veteran’s coronary artery disease is rated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005. Under that code, a 10 percent rating is assigned when a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when continuous medication is required. A 30 percent evaluation 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 when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is assigned under DC 7015 when there is more than one episode of acute congestive heart failure in the past year; or when 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 percent to 50 percent. A 100 percent evaluation is assigned under DC 7015 for chronic congestive heart failure; or when there is a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is LVEF of less than 30 percent. The Board concludes that, prior to May 10, 2005, the preponderance of the evidence is against a rating higher than 10 percent for CAD; however, the Board finds that a 60 percent rating from May 10, 2005 to September 17, 2006 is warranted for CAD. From May 4, 2011, the Board concludes that the preponderance of the evidence is against a rating excess of 60 percent. For the period of time prior to May 10, 2005, the evidence weighs against the claim. Private records from December 2003 show 13 METs on stress testing and LVEF of 66 percent. VA records from April 2004 show LVEF of 71 percent. Additional records from April 2005 show normal heart size. These findings demonstrate that the criteria for a 30 percent rating were not more nearly met for this period. Notably, a February 2004 private evaluation indicated the Veteran had chest pain, shortness of breath, fatigue and other symptoms daily, and that he could only walk less than one block without resting or experiencing pain. While the Board has considered this evidence, the examiner did not express any estimation of the level of activity must in METs as is needed for evaluation purposes. Therefore, this evidence does not support the assignment of a rating higher than 10 percent for CAD. For the period of time from May 10, 2005 to September 17, 2006, the evidence supports that assignment of a 60 percent rating for CAD. During this time, VA records document left ventricular hypertrophy, which is consistent with the higher 30 percent rating. Shortly thereafter, in August 2005, private records include a diagnosis of congestive heart failure. This diagnosis is repeated in July 2006. Congestive heart failure is consistent with a 60 percent rating under DC 7005, and the Board will assign such a rating from May 10, 2005, when the evidence shows an increase in disability through left ventricular hypertrophy. For the period of time from May 4, 2011, the evidence weighs against a rating in excess of 60 percent. The 60 percent rating contemplates more than one “episode” of congestive heart failure in a year, whereas the higher 100 percent rating is assigned when “chronic” congestive heart failure is demonstrated. The August 2005 and July 2006 records do not show findings for chronic heart failure. Moreover, additional records show LVEF of 76 percent and 60 percent during this period which are not consistent with the 60 percent rating, let alone the 100 percent rating. Therefore, the criteria for a rating in excess of 60 percent rating are not more nearly approximated. 38 U.S.C. § 4.7 (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). Following expiration of the 100 percent temporary rating beginning May 4, 2011, a rating in excess of 60 percent is not warranted. A VA examination conducted on May 4, 2011 found no evidence of congestive heart failure. LVEF was 76 percent. The examiner stated that the Veteran could not perform a stress test due to ambulation issues, but his interview-based METs score was greater than 3 but not greater than 5, consistent with the 60 percent rating. The examiner further stated that, based on his LVEF, his METs score was greater than 5 but not greater than 7. The evidence does not more nearly reflect the criteria for the next higher rating in the absence of chronic congestive heart failure, a METs workload of less than 3, or LVEF of less than 30 percent. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. However, the medical evidence is more probative of the level of impairment given that the rating criteria are predicated on objective medical findings. In this case, the medical findings do not meet the schedular requirements for higher evaluations than now assigned, as explained and discussed above. The Board finds that there is no basis to further “stage” the rating as the evidence shows no additional distinct period where the disability exhibited symptoms that would warrant a different rating. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 2. Entitlement to a temporary total disability rating for CAD based on convalescence prior to September 18, 2006. 3. Entitlement to SMC based on housebound status. 4. Entitlement to TDIU. Issues 2-4. In conjunction with the claim for increase for CAD, the Veteran’s attorney has raised the issues of entitlement to a total rating for convalescence, special monthly compensation at the housebound rate, and a TDIU. Although these matters are part-and-parcel of the claim for increase, they have not been developed or adjudicated by the originating agency in the first instance. 38 C.F.R. § 3.155(d)(2) (as part of a claim, VA must adjudicate entitlement to any ancillary benefits for complications of the claimed condition). See also Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. Provide notice to the Veteran of how establish entitlement to the benefits sought. 2. Conduct any other development deemed warranted. 3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel