Citation Nr: 18148164 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 18-35 959 DATE: November 6, 2018 REMANDED Entitlement to an initial rating in excess of 30 percent for coronary artery disease (CAD), status post coronary percutaneous angioplasty, from September 22, 2006 to July 15, 2008, and from November 1, 2008, and to an increased rating in excess of 60 percent from December 28, 2017, to include as on an extraschedular basis, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected CAD. Entitlement to a grant of total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from May 1969 to September 1969, as well as service in the United States Army Reserve, to include a period of ACDUTRA from April 25, 2001 to May 12, 2001. 1. Entitlement to an increased rating for CAD, status post coronary percutaneous angioplasty is remanded. In the Veteran’s notice of disagreement dated February 2016, through his representative, he argued that he should be separately rated for multiple cardiac conditions in addition to requesting an increase in the rating for the CAD. The Veteran’s representative requests separate evaluation of ischemic heart disease, hypertension (addressed in #2 below), hypertensive heart disease, left ventricle hypertrophy, and mitral and tricuspid regurgitation, either as separately diagnosed disabilities or whose symptoms should be included under evaluation for the severity of disability of the service-connected CAD. The rating criteria for CAD mirror those of hypertensive heart disease. 38 C.F.R. § 4.104, Diagnostic Codes 7005 and 7007. Thus, granting a separate rating for hypertensive heart disease in addition to CAD would constitute pyramiding, which is contrary to VA regulations. 38 C.F.R. § 4.14. Likewise, the December 2017 VA examiner listed “CAD, CABG” under the category of “ischemic heart disease,” thus a separate rating for ischemic heart disease would be improper. The December 2017 VA examination did not list any heart valve condition diagnoses. The December 2017 VA examination also did not note the presence of cardiac hypertrophy. The Veteran’s representative also noted in the July 2018 Form VA-9 that the prior arguments had not been addressed in the statements of the case provided by the RO. Additionally, the Veteran’s representative argued that because the diagnostic codes for heart disease are heavily dependent on METs testing, and the Veteran’s medical records contain few records of METs testing during the appeal period, that the Veteran’s CAD should be evaluated under extraschedular consideration because the diagnostic codes do not take into consideration all of the Veteran’s symptoms of CAD. The Board agrees. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.” 38 C.F.R. § 3.321(b)(1). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptoms of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant’s disability level and symptoms, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant’s level of disability and symptoms and is found inadequate, the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” 38 C.F.R. § 3.321(b)(1) (related factors may include factors such as “marked interference with employment” and “frequent periods of hospitalization”). The Veteran’s service-connected CAD is evaluated under diagnostic code 7005. A 30 percent rating is warranted for arteriosclerotic heart disease resulting in a workload of greater than 5 METs but not greater than 7 METs causing 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 for arteriosclerotic heart disease resulting in 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 causing dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104. The Veteran’s records show a METs test from August 2007. The 2012 VA examination noted an exercise test 6 months earlier but had no results listed. The interview-based METs test on the VA examination was listed as 5-7 METS. The December 2017 VA examination listed an interview-based METS test level of 3-5 with dyspnea and fatigue. The associated left ventricular ejection fraction was 60 to 65 percent. Records show the Veteran was hospitalized more than once for procedures related to CAD. The Board finds that there has been limited METs testing relative to the length of the appeal period, and that the Veteran’s CAD produces pathology warranting referral to consider the propriety of an extraschedular rating. The Board cannot assign an extraschedular rating in the first instance. 38 C.F.R. § 3.321(b). Referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted for the Veteran’s service-connected migraines. Accordingly, a remand is necessary. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected CAD is remanded. The Veteran argues in the February 2016 notice of disagreement that his hypertension should be service-connected as a separate disability per 38 U.S.C. § 4.104, DC 7101, Note (3), instructing a rating for hypertension separately “from hypertensive heart disease and other types of heart disease.” The Veteran’s original claim in 2006 was for “heart disease condition,” and the Veteran’s representative argues that the Veteran should be considered for any conditions that may be heart related based on Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the Veteran’s July 2008 discharge paperwork after heart surgery related to his service-connected CAD includes a diagnosis of hypertension. The Veteran has not been afforded a separate VA examination for hypertension. The Veteran should be provided a VA examination for hypertension and related opinion for service connection for hypertension, to include as secondary to service-connected CAD. 3. Entitlement TDIU is remanded. The issue of TDIU was raised by the Veteran’s record, as well as the Veteran’s representative, e.g. in the February 2016 notice of disagreement. The RO has not made a determination on TDIU. At this point, the Veteran has additional issues that should be adjudicated prior to the determination on TDIU, as such it is remanded. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The matter is REMANDED for the following action: 1. Refer the Veteran’s claim for an increased rating for coronary artery disease to VA’s Director of Compensation Service for extraschedular consideration. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypertension. The examiner must opine whether a diagnosed hypertension condition: (a.) Is at least as likely as not related to an in-service injury, event, or disease. (b.) at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. (c.) (Secondary service connection) – whether it is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability, including but not limited to coronary artery disease. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)