Citation Nr: 18150133 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 14-32 784 DATE: November 15, 2018 ORDER Entitlement to an effective date prior to March 7, 2011, for the assignment of a 100 percent disability rating for coronary artery disease, status post coronary artery bypass grafting (CAD), is denied. FINDINGS OF FACT In a February 2011 rating decision, the RO granted service connection for coronary artery disease status post myocardial infarction and coronary artery bypass graft associated with herbicide exposure with an evaluation of 10 percent effective October 6, 2003; 60 percent, effective April 18, 2005; a 100 percent, effective December 29, 2005; 30 percent, effective April 1, 2006; 60 percent, effective July 17, 2006; and 10 percent, effective June 2, 2009. In August 2012 the RO granted the Veteran a rating of 100 percent disabling for his CAD, effective March 7, 2011. The evidence of record does not show that the Veteran’s CAD warrants a 100 percent rating between April 1, 2006 and March 7, 2011. CONCLUSION OF LAW The criteria for an earlier effective date, prior to March 7, 2011 for a 100 percent rating for CAD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1967 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Veteran’s August 2012 NOD stated, “I disagree with your decision based on the fact that you ignored the request on the 21-4138 for a 100% service connected rating for ischemic heart disease since December 27, 2005.” See August 2012 NOD. The Board does not construe this statement as an implied claim for a total disability rating based on individual unemployability (TDIU). The Board finds that the Veteran’s NOD statement constitutes merely an expression of his general desire for the maximum possible benefit to which he is entitled for his service-connected disabilities, which is to be considered in every case unless otherwise asserted by the claimant. Additionally, as the only claim before the Board is for earlier effective date, TDIU is not considered a part of the claims currently before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (finding that TDIU is an element of an increased rating claim). The Board also notes in his August 2014 Form 9, the Veteran contended that he filed a notice of disagreement with the RO’s August 2012 decision that granted TDIU from June 29, 2010 to March 7, 2011. He asserted he should be granted entitlement to the 100 percent rate effective December 29, 2005 as he was unable to work due to his service connected disabilities and the August 2012 decision was clear and unmistakable error (CUE). The CUE claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). 1. Entitlement to an effective date prior to March 7, 2011, for the assignment of a 100 percent disability rating for coronary artery disease, status post coronary artery bypass grafting (CAD). Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2); Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant’s file which demonstrates that an increase in disability was “ascertainable” up to one year prior to the claimant’s submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). In this case, the question before the Board is when it is factually ascertainable from the evidence of record that the Veteran met the criteria for a 100 percent disability rating for CAD. See 38 C.F.R. § 3.400. The Veteran’s service-connected CAD status-post coronary artery bypass surgery is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7017. Under Diagnostic Code 7017, A 10 percent rating is warranted for a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope or, continuous medication required. A 30 percent rating is warranted with a workload of greater than 5 METs but not greater than 7 METs resulting in 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 more than one episode of acute CHF in the past year, or; workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction (LVEF) with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic CHF; or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Code 7017. 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, Note (2). Initially, the Board notes that the record reflects the Veteran underwent coronary artery bypass surgery in 2005. The provisions of Diagnostic Code 7017 explicitly state that the 100 percent rating is for coronary artery bypass surgery. Thus, he is entitled to a 100 percent rating under Diagnostic Code 7017 for the first 3 months following admission for coronary artery bypass surgery. The Veteran’s CAD has been assigned stated ratings of 10 percent effective October 6, 2003; 60 percent, effective April 18, 2005; a 100 percent from December 29, 2005; 30 percent from April 1, 2006; 60 percent from July 17, 2006; 10 percent, effective June 2, 2009; and 100 percent, effective March 7, 2011. The Veteran claims that his 100 percent rating in December 2005 should have been continued prior to the March 7, 2011 rating of 100 percent. As the Veteran limited his appeal to the period between December 29, 2005 to March 7, 2011, the Board will limit its discussion to that period on appeal. Furthermore, the Veteran was in receipt of a 100 percent rating from December 29, 2005 to March 31, 2006 as described in diagnostic coded 7017 following CAD surgery; therefore, the Board will not address this period. The Board further finds that the competent medical and other evidence of record does not reflect during the pendency of this case the Veteran’s service-connected CAD has been manifested by congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope. Thus, the evidence of record does not show that the Veteran’s CAD warrants a 100 percent rating between April 1, 2006 and March 7, 2011. A January 2006 transesophageal echocardiogram procedure note from First Moore Regional Hospital showed the left ventricle exhibited normal contractility with an ejection fraction of 65 percent. The exam summary noted unremarkable transesophageal echocardiogram with no evidence of left atrial thrombus. A February 2006 treatment note showed the perfusion scan showed a mild to moderate reversible defect involving the inferior wall with a summed stress score of 4 and a summed resting score of 1 with a differential of 3. The gated study showed no al segmental wall motion and thickening with an ejection fraction of 67 percent. A July 2006 treatment note from Scotland Memorial Hospital showed suboptimal quality due to a lot of PVCs but the overall ejection fraction is about 45 to 50% indicating mildly reduced left ventricular systolic function. The Veteran reported intermittent intrascapular pain and that he presently had no chest pain. He admitted to exertional dyspnea and easily fatigability, but he had no orthopnea, paroxysmal nocturnal dyspnea, palpitations, or swelling of his lower extremities. The examiner noted the impression was chest pain somewhat atypical but could probably represent angina pectoris. A June 2008 treatment note showed a left ventricle ejection fraction was less than 50 percent. The examiner concluded that the overall heart size is upper limits of normal, and there is normal pulmonary vascularity. There is mediastinal widening of uncertain etiology although there is a suggestion of adenopathy posterior to the trachea. The lungs are well aerated bilaterally with no pulmonary opacities, and the questionable lingular opacity seen on the previous examination. A myocardial perfusion study in June 2009 indicated a left ventricular ejection fraction of 58 percent. The physician noted the left ventricle appeared normal in size and that the Veteran was to still be on aspirin and Plavix. Review of the remaining treatment records during this period do not show any increase in severity or symptoms associated with the Veteran’s service-connected coronary artery disease to warrant a 100 percent rating. Under Diagnostic Code 7017 for the first 3 months following admission for coronary artery bypass surgery a Veteran is entitled to a 100 percent rating. The Board notes that between December 29, 2005 and April 1, 2006, the Veteran was in receipt of a 100 percent disability rating for his coronary artery bypass surgery. After reviewing both the law and the facts set forth above, the Board finds that an effective date prior to March 7, 2011, for the award of a 100 percent rating for coronary artery disease is not warranted. In this regard, medical records during the applicable rating period (April 1, 2006 to March 7, 2011) do not show chronic congestive heart failure; a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent to warrant a 100 percent rating. 38 C.F.R. § 4.104, Diagnostic Code 7017. As detailed herein, the medical evidence showed complaints of chest pain, fatigue, angina, dizziness, and the lowest recorded left ventricular ejection fraction of 45 percent. Further, the record fails to show that the Veteran’s METs workload was ever 3 or less. The Board also notes the argument that the Veteran did not receive a METs test at every medical appointment; however, the Board notes that interview based testing is allowable. Treatment notes show that during his medical appointments the physicians did interview the Veteran in relation to his CAD. VAMC records contained reports of symptoms, if any, the Veteran was having due to his CAD. The Veteran’s wife testified during his July 2018 Board hearing that when seen by his physician, the Veteran would report that he was fine or doing well. She also noted that the examiner listened to the Veteran’s heart during examinations and on occasion requested x-rays. Additionally, the Veteran has not submitted any medical documentation that the medical determinations were incorrect. As a lay person, the Veteran does not have the requisite medical knowledge, training, or experience to determine the appropriate examination necessary to render a medical opinion regarding the medically complex disorder of CAD. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In this case, the record fails to show the Veteran’s CAD warrants a 100 percent disability rating at any time during the appeal period prior to March 7, 2011.   Accordingly, an effective date earlier than March 7, 2011 for the award of a 100 percent rating for coronary artery disease is not warranted and the claim is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 3.400; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Whitley, Associate Counsel