Citation Nr: 18150385 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-34 265A DATE: November 15, 2018 ORDER Entitlement to an initial disability rating greater than 10 percent for service-connected coronary artery disease, status post myocardial infarction, with congestive heart failure, for accrued benefits purposes, prior to May 9, 2005; greater than 30 percent prior to May 11, 2012; and greater than 60 percent, thereafter, is denied. Entitlement to an effective date earlier than July 12, 1999, for the award of service connection for coronary artery disease, status post myocardial infarction, with congestive heart failure, is denied. Entitlement to a higher Dependency and Indemnity Compensation (DIC) rate under 38 U.S.C. 1311 (a) (2) is denied. FINDINGS OF FACT 1. For the period from July 12, 1999, through May 8, 2005, the evidence of record indicates that the Veteran’s service-connected coronary artery disease resulted in an overall disability picture that more nearly approximates that of a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs with dyspnea, fatigue, angina, dizziness or syncope. 2. For the period from May 9, 2005, through May 10, 2012, the evidence of record indicates that the Veteran’s service-connected coronary artery disease was productive of a workload of no less than 7 METs, with dyspnea, fatigue, angina, dizziness or syncope; neither congestive heart failure nor left ventricular dysfunction was shown. 3. For the period from May 11, 2012, the evidence of record indicates that the Veteran’s service-connected coronary artery disease was productive of a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness or syncope; without evidence of congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent. 4. The Veteran’s claim of service connection for coronary artery disease was received no earlier than July 12, 1999; there is no evidence of any unadjudicated formal or informal claim of service connection for this disability prior to that date. 5. The Veteran was not rated totally disabled due to a service connected disability for a continuous period of at least eight years immediately preceding his death in December 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating greater than 10 percent for service-connected coronary artery disease, status post myocardial infarction, with congestive heart failure, for accrued benefits purposes, prior to May 9, 2005; greater than 30 percent prior to May 11, 2012; and greater than 60 percent, thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7005. 2. The criteria for an effective date earlier than July 12, 1999, for the grant of service connection for coronary artery disease status post myocardial infarction, with congestive heart failure, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 5101 (a), 5110 (a), 5121; 38 C.F.R. §§ 3.155 (a). 3. The criteria for enhanced DIC have not been met. 38 U.S.C. §§ 1131 (a)(2), 1311, 1318; 38 C.F.R. § 3.5, 3.21. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1966 to April 1969 and June 1971 to June 1974. He died in December 2012. The appellant is his surviving spouse. This matter come before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in St. Paul, Minnesota. 1. Entitlement to an initial disability rating greater than 10 percent for service-connected coronary artery disease, status post myocardial infarction, with congestive heart failure, prior to May 9, 2005; greater than 30 percent prior to May 11, 2012; and greater than 60 percent, thereafter, for accrued benefits purposes. The appellant asserts that the Veteran’s service-connected coronary artery disease, status post myocardial infarction, with congestive heart failure, was more disabling than reflected by the currently assigned, respective 10 percent, 30 percent, and 60 percent disability ratings. She contends that the Veteran was totally disabled as a result of this service-connected disability since the time of his initial myocardial infarction that occurred in December 1998. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the Veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for accrued benefits purposes was granted in an April 2013 rating decision wherein the RO assigned an initial 10 percent disability rating, effective as of July 12, 1999, and a 60 percent disability rating, effective as of May 21, 2012. Thereafter, by rating action dated in July 2014, the RO determined that the service-connected disability warranted an increased 30 percent disability rating, effective as of May 9, 2005, and a 60 percent disability rating, effective as of May 11, 2012. The Veteran’s disability has been rated under 38 C.F.R. § 4.104, Diagnostic Code 7005 which provides the rating criteria for arteriosclerotic heart disease. Under Diagnostic Code 7005, a 10 percent rating is warranted for a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required. A 30 percent rating is warranted if a workload between 5 and 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilatation. A 60 percent rating is warranted if there had been more than one episode of acute congestive heart failure in the past year; or if a workload between 3 and 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted if there is chronic congestive heart failure; or if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. VA outpatient treatment records dated from July 1999 to March 2001 show that the Veteran had an ejection fraction of 70 percent. A VA examination report dated in October 1999 shows that the Veteran was said to have a history of a myocardial infarction in December 1998. He reported that he had experienced four myocardial infarctions at that time. He was said to have apparently had four different episodes of chest pain and problems. He was noted to have had a cardiac catheterization in July 1999 with laser removal of the blockages. He was on medication for his cholesterol, triglycerides, and hypertension; aspirin for his heart; and nitroglycerine for his coronary artery disease. He had not started any medications until 1998. The Veteran was also said to have emphysema and chronic obstructive pulmonary disease for which he used inhalers. Physical examination, in pertinent part, revealed regular heart rate and rhythm without murmurs, rubs, or gallops. Blood pressure was 154/116 and 175/99 with pulse at 58. The diagnosis, in part, was coronary artery disease requiring cardiac catheterization and laser obliteration of vascular occlusions; status post ischemic heart disease and myocardial infarction times four in December 1998. An echocardiogram/doppler report from Ark-La-Tex Cardiology dated in November 1999 shows that the Veteran’s left-sided chambers were normal in size. Overall left ventricular systolic function was normal with an ejection fraction of 70 percent. Left ventricular wall thickness was normal. Mitral valve was structurally normal. Doppler flows revealed trivial mitral regurgitation with no evidence of valvular stenosis. The aortic valve appeared trileaflet and was normal. Doppler flows revealed no significant valvular regurgitation or stenosis. Left ventricular inflow pattern was normal. There was no evidence of pulmonary hypertension; pericardial effusion; intracardiac masses; or thrombi. A VA myocardial perfusion, rest, and stress test dated May 9, 2005, shows that the Veteran had an impression of mild left ventricular chamber dilation with a calculated ejection fraction of 60 percent. There was moderate scarring of the entire inferior wall with mild ischemia of the distal inferior wall; and mild ischemia of the apex. VA outpatient treatment records dated from May 2006 to February 2008 show that the Veteran was intermittently assessed with stable coronary artery disease, with stress test done in 2005 showing mild inferior ischemia with scarring and ejection fraction of 60 percent. A history of probable ablation of accessory pathway causing rhythm problems of the heart was noted. A VA echocardiogram dated in February 2010 shows that the Veteran was said to have ejection fraction of 50 to 55 percent. Stress test in January 2010 was shown to be mildly abnormal. These findings were reiterated in outpatient treatment records dated through July 2010. A VA outpatient treatment record dated in April 2012 shows that the Veteran reported that his home blood pressure machine would not provide him with a pulse reading. He was said to be asymptomatic with no lightheadedness, dizziness, chest pain, or palpitations. He denied nausea or vomiting. He reported chronic shortness of breath from chronic obstructive pulmonary disease for which he would use steroid inhalers. He also described a one-year history of angina with frequent episodes of chest pain, for which he would take nitroglycerin. He denied any recent chest pain. He was then referred for work up for sinus bradycardia and then discharged. In May 2012, he was said to have coronary artery disease with daily exertional angina, stable for several months, associated with high blood pressure. A VA Ischemic Heart Disease Disability Benefits Questionnaire completed by S. M., D.O., in May 2012, shows that the Veteran had a history of diagnoses of coronary artery disease (March 2012), congestive heart failure (November 2010), hypertension and hyperlipidemia (March 2012), and angina (June 2011). A December 1998 history of myocardial infarction was indicated. He was said to be on medication. He was said to have congestive heart failure that was not chronic. He had not had more than one episode of acute congestive heart failure in the preceding year. An exercise METs test was not completed, but based on the Veteran’s responses, the examiner estimated the lowest level of activity at which the Veteran reported symptoms of dyspnea, fatigue, angina, and dizziness at a METs level of greater than 3 but less than 5. There was evidence of cardiac hypertrophy or dilation. Left ventricular ejection fraction was said to have been 50 percent. His ischemic heart disease was said to impact his ability to work as with minimal exertion he would have shortness of breath, chest pain, weakness, and/or dizziness. The Veteran’s Certificate of Death dated in December 2012 shows that the immediate cause of death was myocardial infarction. As noted above, the Veteran’s service-connected coronary artery disease was initially rated at 10 percent effective from July 12, 1999, to May 8, 2005; rated at 30 percent from May 9, 2005, to May 10, 2012; and rated at 60 percent from May 11, 2012, onward. Notably, the effective date of service connection is July 12, 1999. The evidence of record prior to May 9, 2005, suggests that the Veteran has at least mild coronary artery disease during that time period. His reports of chest pain during that time period are competent and credible, and the Veteran reported taking medication for control of his chest pain/angina as needed. The evidence during this time period does not provide METs testing, however, ejection fraction was shown to be at 70 percent. As the findings prior to May 9, 2005, do not demonstrate a workload between 5 and 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; nor is there evidence of cardiac hypertrophy or dilatation; the criteria for the next higher 30 percent disability rating have not been approximated. The evidence of record on May 9, 2005, shows that the Veteran’s disability was manifested by mild left ventricular chamber dilation with a calculated ejection fraction of 60 percent. The manifestation of cardiac dilation renders a disability that most closely approximates the criteria for a 30 percent disability rating. The evidence of record prior to May 11, 2012, does not show that the Veteran experienced more than one episode of acute congestive heart failure per year; a workload between 3 and 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. As such, the criteria for the assignment of the next higher 60 percent disability rating prior to May 11, 2012, have not been approximated. While the May 11, 2012, VA Ischemic Heart Disease Disability Benefits Questionnaire shows that the Veteran had not had more than one episode of acute congestive heart failure in the preceding year, workload METs were estimated to be at a level of greater than 3 but less than 5. There was also evidence of cardiac hypertrophy or dilation, and left ventricular ejection fraction was said to be at 50 percent. These findings clearly establish that the criteria for the next higher 60 percent disability rating are met. However, there is no evidence of chronic congestive heart failure; 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. As such, the criteria for the assignment of a 100 percent disability rating have not been approximated. The Board has considered the statements of the appellant as to the extent of the Veteran’s symptoms. She is certainly competent to report that which she witnessed or had been reported to her by the Veteran or his physicians. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in evaluating a claim for an increased schedular rating, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. In light of the foregoing, the Board finds that the criteria for the assignment of an initial disability rating greater than 10 percent for service-connected coronary artery disease, status post myocardial infarction, with congestive heart failure, for accrued benefits purposes, prior to May 9, 2005; greater than 30 percent prior to May 11, 2012; and greater than 60 percent, thereafter, have not been met. 2. Entitlement to an effective date earlier than July 12, 1999, for the award of service connection for coronary artery disease, status post myocardial infarction, with congestive heart failure. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance, and the regulations in effect prior to March 24, 2015, will be applied in this case. Under the former regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a Veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). The current effective date of service connection for coronary artery disease status post myocardial infarction, with congestive heart failure, is July 12, 1999, the date that the Veteran’s initial claim of service connection for residuals of Agent Orange exposure was received. The appellant has asserted that the effective date be in December 1998, the date on which the Veteran experienced his first myocardial infarction. The Board recognizes that on December 22, 1987, the United States District Court for the Northern District of California certified a class consisting of: [A]ll current or former service members, or their next of kin (a) who are eligible to apply to, who will become eligible to apply to, or who have an existing claim pending before the Veteran’s (sic) Administration for service-connected disabilities or deaths arising from exposure during active-duty service to herbicides containing dioxin or (b) who have had a claim denied by the VA for service-connected disabilities or deaths arising from exposure during active-duty service to herbicides containing dioxin. Nehmer v. United States Veterans’ Administration, 118 F.R.D. 113, 116, 125 (N.D. Cal. 1987) (Nehmer I). On May 3, 1989, the district court invalidated a portion of former 38 C.F.R. § 3.311a, pertaining to the adjudication of claims based on exposure to herbicides containing dioxin, holding that the regulation was based on an incorrect interpretation of the requirements of the Dioxin Act. Nehmer v. United States Veterans’ Administration, 712 F. Supp. 1404, 1423 (N.D. Cal. 1989). The Court also voided all benefit denials made under the invalidated regulation and remanded the matter to VA for further proceedings not inconsistent with the Court’s opinion. Id. VAOPGCPREC 15-95 (1995). The stipulation and order entered into in Nehmer applies where (1) a claim was denied under regulations voided by the court in Nehmer; (2) a claim was filed after the date of the court’s decision and before issuance of the new regulations; or (3) a claim was pending at the time of the issuance of current regulations providing for presumptive service connection for disabilities due to exposure to Agent Orange. Diseases Associated With Exposure to Certain Herbicide Agents. 59 Fed. Reg. 29,723, 29,724 (1994). The Court later clarified that the claims “made under” 38 C.F.R. § 3.311a (d) were those in which the disease or cause of death is later found-- under valid Agent Orange regulation(s)--to be service-connected. Nehmer v. United States, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II); see Williams v. Principi, 310 F.3d 1374 (Fed. Cir. 2002). A “Nehmer class member” means either a Vietnam Veteran who has a covered herbicide disease or a surviving spouse, child, or parent of a deceased Vietnam Veteran who died from a covered herbicide disease. 38 C.F.R. § 3.816 (b)(1) (2015). A “covered herbicide disease” means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4, other than chloracne, as provided in 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.816(b)(2). Hence, a covered herbicide disease includes coronary artery disease (i.e., ischemic heart disease). See 38 C.F.R. § 3.309 (e). As applicable to this case, if the Nehmer class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose. 38 C.F.R. § 3.816 (c)(2). Ischemic heart disease (including coronary artery disease) was added to the list of diseases subject to presumptive service connection for a Veteran exposed to certain herbicide agents, effective August 31, 2010. See 75 Fed. Reg. 53,202 (August 31, 2010). In the present case, the Veteran served in Vietnam and service connection was granted for coronary artery disease on the basis of herbicide exposure in Vietnam. Nevertheless, the current effective date of service connection for coronary artery disease (July 12, 1999) pre-dates the effective date of the regulation establishing a presumption of service connection for that disease (i.e., August 31, 2010). Moreover, the other provisions pertaining to the assignment of effective dates for covered herbicide diseases of Nehmer class members are inapplicable because there is no evidence that VA ever denied compensation for the Veteran’s coronary artery disease between September 25, 1985, and May 3, 1989, and no claim of service connection for a cardiac disability was ever filed prior to the currently assigned effective date. The Board acknowledges that medical records dated prior to the Veteran’s claim indicate that he was treated for cardiac problems. However, treatment records cannot constitute an original claim of service connection. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006) In sum, the Veteran never submitted any unadjudicated formal claim of service connection for a cardiac disability, nor are there any communications in the record prior to the currently assigned effective dates, that could be considered an informal claim for VA compensation for the same. Thus, July 12, 1999, is the earliest possible effective date. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Therefore, the Board finds that there is simply no basis upon which to justify granting an effective date earlier than July 12, 1999, for the grant of service connection for coronary artery disease, status post myocardial infarction, with congestive heart failure, for the purposes of accrued benefits. Hence, the appeal must be denied. 3. Entitlement to a higher DIC rate under 38 U.S.C. 1311 (a) (2) DIC is payable to a Veteran’s surviving spouse when the Veteran dies from a service-connected disability. 38 U.S.C. §§ 1310, 1311; 38 C.F.R. § 3.5 (a). 38 C.F.R. § 3.10 (b) provides that the basic monthly rate of DIC for a surviving spouse will be the amount specified in 38 U.S.C. § 1311 (a)(1) corresponding to the Veteran’s pay grade in service. The basic monthly rate will be increased by the amount specified in 38 U.S.C. § 1311 (a)(2) if the Veteran at the time of his death, was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least eight years immediately preceding death. 38 C.F.R. § 3.10 (c). The appellant contends that the Veteran’s service-connected coronary artery disease was totally disabling for at least eight years prior to his death. The Veteran died in December 2012. At the time of his death, service connection had been established for bilateral hearing loss, tinnitus, hemorrhoids, tinea pedis, and fracture of the left jaw area. His combined disability rating was 10 percent from July 12, 1999. Thereafter, service connection for accrued benefits purposes was established for coronary artery disease, status post myocardial infarction, with congestive heart failure, wherein his combined disability rating was increased to 20 percent from July 12, 1999; 40 percent from May 9, 2005; and 60 percent from May 11, 2012. Thus, for the eight years preceding the date of his death, the Veteran’s service-connected disabilities were not rated at 100 percent. There is no competent and credible evidence of record showing that the Veteran’s service-connected disabilities rendered him totally disabled during his lifetime. (Continued on the next page)   The Board is sympathetic to the appellant under these circumstances; however, it is bound by law and is without authority to grant benefits on an equitable basis. The statutory requirements of 38 U.S.C. § 1311 (a)(2) have not been met. There is no doubt to be resolved in the appellant’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Therefore, a higher rate of DIC benefits under the provisions of 38 U.S.C. § 1311 (a)(2) is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel