Citation Nr: 18145801 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 13-36 184 DATE: October 30, 2018 ORDER A 30 percent rating for service-connected ischemic heart disease (IHD), from May 5, 1997 to March 9, 2005, is granted, subject to the legal authority governing the payment of VA compensation. The appellant’s request to be recognized as the substitute claimant is dismissed as moot. FINDINGS OF FACT 1. From the May 5, 1997, to March 9, 2005, the Veteran had a documented history of anginal attack dating from 1996 with ordinary manual labor feasible, but there is no evidence or argument that more than light manual labor was not feasible during that period. 2. The appellant has been recognized as a proper claimant for claims for benefits pending at the time of the Veteran’s death. CONCLUSIONS OF LAW 1. The criteria for an initial 30 percent, but no higher, rating for service-connected IHD, from May 5, 1997 to March 9, 2005, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005 (as in effect prior to January 12, 1998). 2. The appellant’s request to substitute for the Veteran in claims pending at the time of his death is now moot. 38 U.S.C. § 5121; 38 C.F.R. § 3.1010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to September 1968 and from November 1970 to February 1974. He died in December 2011. The appellant is the Veteran’s adult daughter. This appeal to the Board of Veterans’ Appeals (Board) arose from two decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In an August 2011 decision, the RO granted service connection for IHD and assigned an initial 10 percent rating, effective March 18, 1998; assigned a 100 percent rating, effective March 9, 2005; and a 60 percent rating, effective June 6, 2011. In September 2012, the Veteran filed a notice of disagreement (NOD) with the assigned ratings and the effective date of the award of service connection. In January 2014, a statement of the case (SOC) was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. In an April 2015 decision, the RO denied the appellant’s request to substitute as claimant for claims pending at the time of the Veteran’s death. In May 2015, the appellant filed an NOD. In May 2017, an SOC was issued and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in June 2017. In a July 2015 decision, the Board dismissed the Veteran’s claims of entitlement to an earlier effective date for the award of service connection for IHD and for higher ratings for IHD due to the death of the Veteran. The appellant appealed the June 2015 Board dismissal to the United States Court of Appeals for Veterans Claims (Court). In August 2016, the Court granted a Joint Motion for Remand (Joint Motion) filed by representatives for both parties that same month, vacating the Board’s July 2015 dismissal. Consistent with directives in the Joint Motion, in an August 2017 decision, the Board explained that the appellant was a proper claimant pursuant to 38 C.F.R. § 3.816(f)(4) and the mandates in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); and Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). In the August 2017 decision, the Board granted an effective date of May 5, 1997, for the award of service connection for IHD, but denied higher ratings for IHD. Thereafter, the appellant appealed to the Court only the portion of the August 2017 Board decision that denied an initial rating greater than 10 percent prior to March 9, 2005, for IHD. In June 2018, the Court granted a Joint Motion filed by representatives for both parties that same month, vacating the portion of the Board’s August 2018 decision that denied an initial rating greater than 10 percent for IHD prior to March 9, 2005, and returned this matter to the Board. consideration.   I. Higher Initial Rating for IHD Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the award of service connection and consideration of the appropriateness of “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Here, as explained above, the only period on appeal is the initial period from May 5, 1997 to March 9, 2005, for which a 10 percent rating under DC 7005 was in effect. As explained in the June 2018 Joint Motion, DC 7005 was amended during the period on appeal (although the old criteria were never considered by the Board in the July 2017 decision). Prior to January 12, 1998, the rating criteria for arteriosclerotic heart disease (i.e. coronary artery disease) set forth at 38 C.F.R. § 4.104, Diagnostic Code 7005, provided as follows: A rating of 30 percent was to be assigned following typical coronary occlusion or thrombosis, or with history of substantiated anginal attack, ordinary manual labor feasible. A rating of 60 percent was to be assigned following typical history of acute coronary occlusion or thrombosis as above, or with history of substantiated repeated anginal attacks, more than light manual labor not feasible. During and for 6 months following acute illness from coronary occlusion or thrombosis, with circulatory shock, etc. arteriosclerotic heart disease was to be rated at 100 percent. Arteriosclerotic heart disease was also to be rated at 100 percent after 6 months, with chronic residual findings of congestive heart failure or angina on moderate exertion or more than sedentary employment precluded. 38 C.F.R. § 4.104, DC 7005 (as in effect prior to January 12, 1998). At this juncture, the Board notes that the Veteran did not challenge the Board’s denial of a rating greater than 10 percent under the amended criteria of DC 7005, which became effective January 12, 1998. See May 2018 Joint Motion (“Appellant takes no exception to the Board’s analysis of her claim under the rating criteria as amended January 12, 1998, and the parties agree that the Board need not reconsider Appellant’s claim under those criteria”). As such, for the period from May 5, 1997 to March 9, 2005, the Board will consider whether a rating greater than 10 percent is warranted under the old criteria of DC 7005. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the Veteran applies, absent congressional or Secretarial intent to the contrary. See Dudnick v. Brown, 10 Vet. App. 79 (1997). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). In this instance, the old criteria provide for a 30 percent rating, and, as will be discussed in greater detail below, the old criteria are more favorable. Turning to the evidence of record, a private treatment record dated in March 1997 notes that the Veteran experienced a heart attack in March 1996. March 2000 private records note that the Veteran did not have stress-induced ischemia. His left ventricle ejection fraction was recorded as at 67 percent. He was seen for chest discomfort in March 2001. However, cardiac enzymes were negative for myocardial necrosis, and an electrocardiogram showed no acute ischemia. In May 2001, his treating physician indicated that chest pain was probably from aggravation of his reflux symptoms. Additional private records dated in February 2002 and November 2003 note that the Veteran’s coronary artery disease and history of myocardial infarction was asymptomatic. He was seen for possible angina in February 2005, but was again noted to be asymptomatic in March 2005. During a June 2011 VA examination, the Veteran confirmed that he sustained a myocardial infarction in 1996. Considering the above-cited evidence in light of applicable legal criteria, the Board finds that an initial 30 percent rating for IHD, from May 5, 1997 to March 9, 2005, under the old criteria of DC 7005 is warranted. To that end, the Veteran had a documented history of myocardial infarction (which occurred in March 1996). Thus, under the old criteria of DC 7005, such history would have entitled him to an initial 30 percent rating. Notably, there is argument that a rating greater than 30 percent is warranted under either the former or revised criteria is warranted. The appellant’s attorney has exclusively argued that a 30 percent rating for the period is warranted. See, e.g., September 2018 Submission of Appellant’s Attorney. Further, the evidence does not reflect that a higher rating for this period is warranted. To that end, a 60 percent rating under the old criteria requires a showing that more than light manual labor not feasible. Here, there is no evidence that the Veteran’s IHD prohibited more than light manual labor. There is no evidence that the Veteran’s IHD had such an impact on the Veteran’s occupational ability, let alone any argument of such impairment during the period under consideration. Given all the above, the Board finds that a 30 percent, but no higher, rating for the Veteran’s IHD for the period under consideration is warranted. Under the circumstances presented, this a full grant of the benefit sought. The Board further finds that, in conjunction with the higher rating claim under consideration, the appellant has not raised any other related issues, nor have any other such issues been reasonably raised by the record. 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). II. Substitution The appellant asserts that, as the Veteran’s child, she should be recognized as a substitute for the Veteran for claims pending at the time of his death. Periodic monetary benefits to which a VA payee was entitled at his or her death, either by reason of existing VA ratings or decisions or those based on evidence in the file at date of death, and due and unpaid, are known as “accrued benefits.” 38 U.S.C. § 5121; 38 C.F.R. § 3.1000; see also Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996). For a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits, (ii) the VA payee had a claim pending at the time of death, (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee’s death. 38 U.S.C. §§ 5121, 5101(a); 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). If a VA payee dies on or after October 10, 2008, a person eligible for accrued benefits under § 3.1000(a) may also request to substitute for the deceased claimant in a claim for periodic monetary benefits that was pending when the claimant died. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010(a). Upon the death of a surviving spouse, accrued benefits are payable only to the veteran’s children. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000(a)(3). In all other cases, only so much of the accrued benefit may be paid as may be necessary to reimburse the person who bore the expense of last sickness or burial. 38 U.S.C. § 5121(a)(6); 38 C.F.R. § 3.1000(a)(5). Here, in the rating decision on appeal, in the April 2015 rating decision on appeal, the RO determined that the appellant did not have the requisite standing to pursue claims pending at the time of the Veteran’s death. Subsequently, however, in the April 2017 decision discussed above, the Board recognized her as a proper claimant pursuant to Nehmer and 38 C.F.R. § 3.816(f)(4), consistent with directives of a prior Joint Motion. In the subsequent Joint Motion, the parties also recognized the appellant as a proper claimant. The AOJ has done likewise. A May 2017 rating decision implemented the Board’s award of an earlier effective date for service connection for IHD, and, in a June 2017 letter, the AOJ noted the appellant’s entitlement to $755.20 for the earlier effective date award. As such, the Board finds that the appellant has already been recognized as a proper claimant for claims for benefits pending at the time of the Veteran’s death. Under these circumstances, the appellant’s request to substitute has now been rendered moot, and must be dismissed. 38 U.S.C. § 7105; Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel