Citation Nr: 18145130 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 14-40 675 DATE: October 26, 2018 ORDER Entitlement to a rating in excess of 60 percent prior to June 26, 2015 and in excess of 100 percent thereafter, to include on an extraschedular basis, for service-connected coronary artery disease is denied. REMANDED Entitlement to an increased rating for service-connected right knee instability is remanded. Entitlement to an increased rating for service connected right knee degenerative joint disease is remanded. Entitlement to an increased rating for service-connected degenerative joint disease of the left knee is remanded. FINDINGS OF FACT 1. Prior to June 26, 2015, the Veteran’s coronary artery disease was manifested by dyspnea and a left ventricular ejection fraction of no less than 40 percent. 2. From June 26, 2015, the Veteran’s coronary artery disease was manifested by dyspnea and fatigue with an estimated workload of 1 to 3 METs and an ejection fraction of 20 to 25 percent. CONCLUSIONS OF LAW 1. Prior to June 25, 2016, the criteria for an evaluation in excess of 60 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. 2. From June 25, 2016, the criteria for an evaluation in excess of 100 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1963 to May 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in April 2012 and December 2013 of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 60 percent prior to June 26, 2015 and in excess of 100 percent thereafter, to include on an extraschedular basis, for service-connected coronary artery disease A disability rating is 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 be practicably 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s coronary artery disease is currently assigned a 60 percent disability rating prior to June 26, 2015 and a 100 percent disability rating thereafter under Diagnostic Code 7005. Under Diagnostic Code 7005, a 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year, or; a workload 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 for CAD resulting in chronic congestive heart failure, or; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. One MET is defined as 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 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. VA treatment records dated in February 2013 include the results of a 2006 echocardiogram showing “mildly reduced left ventricular systolic function with estimated left ventricular ejection fraction of about 40-45%.” After a March 2012 echocardiogram, the ejection fraction was estimated to be 55 percent. During an August 2013 VA examination, the Veteran reported taking continuous medication for his coronary artery disease. Interview-based METs testing revealed dyspnea with a workload of 1 to 3 METs, consistent with activities such as eating, dressing, taking a shower, or slow walking for 1 or 2 blocks. Left ventricular ejection fraction was 40 percent based on the results of a February 2013 electrocardiography. The examiner indicated that the Veteran’s heart condition would impact his ability to perform physical occupations or his usual occupation due to dyspnea on exertion, shortness of breath, atypical chest pain, and the risk of an ischemic cardiac event or cardiac decompensation. The examiner also clarified that the Veteran’s ejection fraction was most indicative of his current heart condition. Alternatively, the Veteran’s knee condition was most responsible for his current METs limitation. The results of a January 2014 heart catheter revealed a left ventricular ejection fraction of an estimated 45 percent. Based on the above, the Board finds that a rating in excess of 60 percent for the Veteran’s service-connected coronary artery disease is not warranted prior to June 26, 2015. Although there is a finding of 1 to 3 METs during this period, the examiner indicated that the Veteran’s ejection fraction, not his METs score, is most indicative of his current heart condition. There is no evidence that the Veteran’s coronary artery disease symptomatology more nearly approximated the criteria for a 100 percent disability rating during this time. Treatment notes dated in December 2015 reflect that the Veteran had cardiomyopathy with an ejection fraction of 20 to 25 percent. During a January 2016 VA examination, the examiner noted the Veteran’s continuous medication use related to his coronary artery disease. The examiner noted that the Veteran has chronic congestive heart failure and had an episode of acute congestive heart failure in December 2015. The Veteran underwent angioplasty in January 2014 and in December 2015 for coronary artery disease. The examiner noted the Veteran’s ejection fraction of 20 to 25 percent based on the results of January 2016 testing. Interview-based METs testing revealed dyspnea and fatigue with a workload of 1 to 3 METs, consistent with activities such as eating, dressing, taking a shower, or slow walking for 1 or 2 blocks. The examiner clarified that the METs level limitation was due solely to the heart condition. The examiner further found that the Veteran’s heart condition would impact his ability to work because he was unable to do anything but minimal activity. The Veteran’s representative argued that a rating in excess of 100 percent should be considered on an extraschedular basis for the period after June 26, 2015. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court of Appeals for Veterans Claims (Court) has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as “marked interference with employment” or “frequent periods of hospitalization”. If such related factors are exhibited, then referral must be made to the Director of Compensation Service for extraschedular consideration. The Board finds that the rating criteria for coronary artery disease contemplate the Veteran’s heart disease symptomatology. His coronary artery disease is manifested by dyspnea and fatigue with any more than minimal activity. A comparison between the level of severity and symptomatology of the Veteran’s assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe his disability level and symptomatology. The Veteran has not offered any other heart disease symptomatology that render the diagnostic criteria inadequate. Because the rating criteria reasonably describe the Veteran’s disability level and symptomatology, the Board finds his disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is adequate. Therefore, no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96; Chudy v. Rourke, No. 17-0082 Vet. App. (June 14, 2018). Accordingly, the Veteran’s claim must be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for service-connected right knee instability is remanded. 2. Entitlement to an increased rating for service connected right knee degenerative joint disease is remanded. 3. Entitlement to an increased rating for service-connected degenerative joint disease of the left knee is remanded. The Veteran’s most recent examination to evaluate the severity of his service-connected knee disabilities was in February 2014. His treatment records reflect that he was to be scheduled for a right total knee replacement in 2015. Updated treatment records should be obtained regarding any treatment for the Veteran’s knee disabilities. The Veteran also indicated that his knee symptomatology has worsened since his last examination, including that he is unable to walk through a store and that he has increasing pain. A new examination is necessary to evaluate the current severity of his service-connected right and left knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Finally, the Board finds that the February 2014 examination report is not adequate to adjudicate the Veteran’s claims. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion (ROM) testing be conducted whenever possible in cases of joint disabilities. The Court specified that VA examination reports should record the results of ROM testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. An examination must specifically state at which degree of motion any pain begins. If a test is not conducted, the examination should explain why such test was not necessary. The February 2014 examination report reflects that complete range of motion testing was not conducted. As such, the Veteran must be afforded an additional examination that meets the requirements set forth in Correia. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all outstanding treatment records pertinent to the Veteran’s right and left knee claims. Any efforts in this regard should be noted in the claims file. 2. Then, afford the Veteran a VA examination to determine the current severity of his service-connected left and right knee disabilities. The claims folder should be made available to the examiner for review prior to the examination, and the examiner should acknowledge such review in the examination report. As part of this examination, the examiner must evaluate the range of motion for pain in both active motion and passive motion, as well as in weight-bearing and nonweight-bearing scenarios for each joint. The examiner must specifically note range of motion measurements. Further, the examiner must identify the points, if any, at which pain begins. If any of the tests cannot be conducted, are not medically appropriate, or are not necessary, the examiner must specifically explain why and whether there is additional evidence that would permit the necessary opinion to be made. The examiner must also note whether there are further functional limitations due to pain, weakness, fatigue and/or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Lindsey Connor