Citation Nr: 18150794 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 12-31 694 DATE: November 16, 2018 ORDER An increased initial disability rating of 60 percent is granted for coronary artery disease (CAD), for the period from August 19, 1992 to November 21, 1997. An initial disability rating higher than 30 percent for CAD is denied, for the period from June 1, 1998 to August 25, 2010. An initial disability rating higher than 60 percent for CAD is denied, for the period from August 26, 2010 to January 21, 2015. An increased initial disability rating of 100 percent for CAD is granted, for the period from January 22, 2015 to July 31, 2015. An initial disability rating higher than 60 percent for CAD is denied, for the period since August 1, 2015. VETERAN’S CONTENTIONS The Veteran contends that the current ratings assigned to his service-connected CAD do not adequately encapsulate the severity of his disability. Specifically, the Veteran contends that he is entitled to a 100 percent rating for the entirety of the claim period. FINDINGS OF FACT 1. The Veteran served on active duty from August 1962 to February 1963 and from February 1967 to June 1971, including service in the Republic of Vietnam. 2. As recorded in an April 1993 treatment record from the Wheeling Medical Group, the Veteran complained of soreness and stiffness in the upper neck, with the symptoms radiating to the upper back. The Veteran denied exertional chest pain or chest pressure episodes. The Veteran also denied any orthopnea or dyspnea symptoms. A review of the Veteran’s cardiac system produced a regular rate and rhythm without evidence of murmur or gallop. 3. In a September 1994 treatment record, Dr. Searcy at the Wheeling Medical Group assessed the Veteran with fairly-stable CAD and noted that the Veteran was taking aspirin and Tenormin to treat it. Lastly, Dr. Searcy commented that the Veteran’s heart condition was functional Class I. 4. During a November 1994 VA examination for posttraumatic stress disorder (PTSD), the Veteran reported that he had been working as a state inspector for eight years. 5. Later, during a February 1997 VA PTSD examination, the Veteran stated that he had been working on a survey team and that his job was very stressful. The Veteran elaborated that his job could also be physically demanding when his team was involved with new road construction. Lastly, the Veteran stated that when not at work, he watched his girls play basketball and worked on his house. 6. In a discharge summary dated November 25, 1997, Dr. Roye—a non-VA clinician—indicated that the Veteran was a surveyor for a state highway department and that the Veteran was admitted on November 22, 1997 after developing substernal chest discomfort after sawing wood. The Veteran’s chest discomfort was associated with diaphoresis, shortness of breath, and nausea. An electrocardiogram showed peaked T waves in the anterior leads with reciprocal change, indicative of an anterior injury pattern. The Veteran was taken to a catheterization laboratory and clinicians performed a right and left coronary angiography as well as an angioplasty of the left anterior descending artery. Dr. Roye provided a final diagnosis of CAD with an acute anteroseptal myocardial infarction, with borderline cardiogenic shock. 7. During a December 2000 VA PTSD examination, the Veteran reported that he had resigned from his job with the state department of transportation due to problems getting along with other personnel. The Veteran stated that he was self-employed and took whatever jobs he could get. Lastly, the Veteran stated that, when he was not employed, he worked on his house and went fishing. 8. A June 2002 VA treatment record shows that the Veteran complained of severe pain in his right flank and the right lower back beginning the previous weekend. The Veteran stated that that weekend he had pulled on his lawn mower frequently and cut his grass. Additionally, he had gone fishing. 9. In an August 2000 VA treatment record, the Veteran reported that he could no longer exercise because of pain and tiring easily. Additionally, the Veteran reported that he had trouble breathing. 10. As recorded in an April 2005 VA treatment record, the Veteran stated that he took acetylsalicylic acid daily. The Veteran denied chest pain, shortness of breath, or dyspnea on exertion. 11. On August 26, 2010, the Veteran was afforded a VA examination in connection with his CAD. The Veteran stated that, as a result of his heart condition, he experienced angina, shortness of breath, and fatigue; he denied experiencing dizziness or syncope attacks. The Veteran reported that his symptoms were intermittent, occurred as often as 2 to 3 times a month, with each occurrence lasting 24 hours to 48 hours. The Veteran stated that during one of his intermittent attacks, he could not do anything and just stayed down all day. During the past year, the Veteran reported having 18 such attacks. The Veteran also said that he had congestive heart failure 20 times during the past year, with each episode lasting one week. Lastly, the Veteran reported that, overall, he felt weak and tired most of the time, he had reduced his household and recreational activities, he had pain in his upper left chest area as well as his neck and left arm, and that he unable to work at his former job. An examination of the heart did not reveal any evidence of congestive heart failure, cardiomegaly, or cor pulmonale. Chest x-rays taken in connection with the examination showed no acute radiographic abnormalities. An exercise stress test revealed a peak workload of 4.6 metabolic equivalents of task (METs). 12. In February 2012, the Veteran stated that his CAD prevented him from being able to work in his yard mowing the grass. Additionally, he stated that it interfered with sexual intercourse with his spouse, causing problems in their marital relationship. 13. Pursuant to a discharge summary from St. John Medical Center dated January 24, 2015, the Veteran was admitted on January 22, 2015 with a diagnosis of a non-ST elevation myocardial infarction. The Veteran was provided the following discharge diagnoses: (1) non-ST elevation myocardial infarction status post drug-eluting stent in the left anterior descending and distal left marginal, and (2) ischemic cardiomyopathy with ejection fraction of 45 percent with left anterior descending territory hypokinesis. 14. In January 2016, the Veteran was afforded another VA examination regarding his CAD. The examiner noted that an echocardiogram had been conducted in conjunction with the examination in December 2015, with normal results and an ejection fraction of 55 to 60 percent. The examiner also commented that an actual exercise stress test could not be performed as the Veteran reported he was incapable due to leg problems, back issues, and shortness of breath. The examiner estimated that the Veteran was limited to 3 to 5 METs based on the Veteran’s responses to interview questions. Regarding a report of symptoms, the Veteran reported experiencing occasional angina pectoris and chest pain which had been “the same” over time. The Veteran also said that he had sharp mid-chest pain, radiating to the left arm, with associated shortness of breath. However, the Veteran also stated that he had constant chest pain. Lastly, the Veteran reported that he engaged in minimal physical activities. 15. In April 2018, the Board requested that a VA cardiologist review the Veteran’s entire claims file and provide an additional medical opinion describing the severity of the Veteran’s service-connected CAD from August 1992 to the present. 16. In July 2018, Dr. Egan, a general cardiologist at the VA Martinez Outpatient Clinic reviewed the Veteran’s entire claims file and provided a summary of the Veteran’s CAD history. Dr. Egan stated that during the time period immediately preceding the filing of the initial claim for service connection—March 1992—the Veteran experienced a history of substantiated repeated anginal attacks, with ordinary manual labor feasible. Dr. Egan explained that at that time, the Veteran did not experience myocardial infarction, coronary occlusion with circulatory shock, chronic residual findings of congestive heart failure, angina on moderate exertion or preclusion of sedentary employment. Thereafter, in April 1992, arteriosclerotic heart disease was confirmed via cardiac catheterization and the Veteran’s measured exercise tolerance was 6.8 METs. Following the Veteran’s myocardial infarction in November 1997, Dr. Egan stated that by June 1998, the Veteran was capable of performing ordinary manual labor. Additionally, there were no findings of chronic residual congestive heart failure, angina on moderate exertion, or preclusion of more than sedentary employment. Dr. Egan then continued to summarize the findings of the Veteran’s August 2010 VA examination, the January 2015 myocardial infarction treated at St. John’s Medical Center, and the January 2016 VA examination. CONCLUSION OF LAW 1. The criteria for an increased initial disability rating of 60 percent for CAD are met, for the period from August 19, 1992 to November 21, 1997. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7005-7006. 2. The criteria for an initial disability rating higher than 30 percent for CAD for the period from June 1, 1998 to August 25, 2010 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7005-7006. 3. The criteria for an initial disability rating higher than 60 percent for CAD for the period from August 26, 2010 to January 21, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7005-7006. 4. The criteria for an increased initial disability rating of 100 percent for CAD for the period from January 22, 2015 to July 31, 2015 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7005-7006. 5. The criteria for an initial disability rating higher than 60 percent for CAD for the period since August 1, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7005-7006. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which granted service connection for CAD due to herbicide exposure in Vietnam and assigned the following disability ratings: (1) 30 percent from August 19, 1992 to November 21, 1997; (2) 100 percent from November 22, 1997 to May 31, 1998; (3) 30 percent from June 1, 1998 to August 25, 2010; and (4) 60 percent from August 26, 2010 onward. The Veteran filed a timely notice of disagreement (NOD) in January 2012 seeking increased disability ratings as well as an earlier effective date for the initial award of service connection. After the issuance of a statement of the case (SOC) in September 2012, the Veteran filed a timely substantive appeal in November 2012. Thereafter, in March 2015, the Board denied the issue of an effective date earlier than August 19, 1992 for the award of service connection for CAD. It then remanded the issue of entitlement to increased ratings for the provision of an additional VA examination as well as a retrospective medical opinion. The increased rating issues returned to the Board, and, in June 2017, the Board again remanded the issues as the requested medical opinion was insufficient. The case has now again returned to the Board for appellate review. Increased Initial Ratings As indicated above, the Board finds that the Veteran is entitled to the following initial disability ratings for CAD: (1) 60 percent from August 19, 1992 to November 21, 1997; (2) 100 percent from November 22, 1997 to May 31, 1998; (3) 30 percent from June 1, 1998 to August 25, 2010; (4) 60 percent from August 26, 2010 to January 21, 2015; (5) 100 percent from January 22, 2015 to July 31, 2015; and (6) 60 percent from August 1, 2015 onward. Accordingly, to this extent, the Veteran’s appeal is granted. The Board first notes that the Veteran’s CAD is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7005-7006. The regulations pertaining to the evaluation of this disability were amended during the pendency of the appeal. See 62 Fed. Reg. 65, 207-08 (Dec. 11, 1997); codified at 38 C.F.R. § 4.104, Diagnostic Codes 7000 to 7123; see also 71 Fed. Reg. 52, 459-60 (Sept. 7, 2006); codified at 38 C.F.R. § 4.100. Prior to January 12, 1998, Diagnostic Code 7006—the diagnostic code assigned for myocardial infarctions—directed that VA evaluators rate such a disability pursuant to Diagnostic Code 7005 for arteriosclerotic heart disease. At that time, under Diagnostic Code 7005, a 30 percent rating was to be assigned following typical coronary occlusion or thrombosis, or with history of substantiated anginal attack, ordinary manual labor not feasible. A 60 percent rating 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. A 100 percent rating was to be assigned during and for 6 months following acute illness from coronary occlusion or thrombosis, with circulatory shock, etc. A 100 percent rating was also awarded after 6 months, with chronic residual findings of congestive heart failure or angina on moderate exertion or more than sedentary employment precluded. Effective January 12, 1998, under Diagnostic Codes 7005 and 7006, 30 percent ratings are assigned for CAD or myocardial infarctions resulting in a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. 60 percent ratings are assigned for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 100 percent ratings are assigned for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Additionally, under Diagnostic Code 7006, a 100 percent rating is assigned during and for 3 months following a myocardial infarction, documented by laboratory tests. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable diagnostic codes to the period on or after the effective date of the new diagnostic codes if the prior versions were in effect during the pendency of the appeal, as is the case here. Consequently, the Board may evaluate the Veteran’s CAD under the earlier and current diagnostic codes, as of their effective dates, in order to determine which version would provide him with the highest rating. As such, the January 12, 1998 amendments may only be applied on and after January 12, 1998. In the instant case, the Board finds that, from August 19, 1992 to November 21, 1997, the Veteran is entitled to a higher rating of 60 percent pursuant to the pre-January 12, 1998 rating criteria. The Board bases this determination upon a statement in Dr. Egan’s July 2018 opinion that, at the time the Veteran’s claim was received by VA, he suffered from a history of substantiated repeated anginal attacks and that ordinary manual labor was feasible. From the time period of November 22, 1997 to May 31, 1998, the Board does not disturb the Veteran’s 100 percent rating. Comparatively, for the time period of June 1, 1998 to August 25, 2010, the Board finds that the Veteran is not entitled to a disability rating greater than 30 percent under both pre- and post-January 12, 1998 rating criteria. Specifically, as recounted above in the Findings of Fact section, there was no evidence of acute coronary occlusion or thrombosis and the Veteran appeared to be able to perform more than light manual labor—as evidenced by working on his home, doing yard work, and not limiting his selection of jobs when he was self-employed. Additionally, from the time period beginning January 12, 1998, there is no evidence that: (1) the Veteran had more than 1 episode of acute congestive heart failure per year; (2) a workload between 3 and 5 METs resulted is dyspnea, fatigue, angina, dizziness, or syncope; or (3) the Veteran had left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Similarly, the Board finds that the Veteran is not entitled to a rating higher than 60 percent from August 26, 2010 to January 21, 2015. During this time period, the Veteran did not have: (1) an acute illness from coronary occlusion or thrombosis; (2) chronic residual findings or congestive heart failure; (3) angina on moderate exertion; (4) preclusion of more than sedentary employment; (5) a myocardial infarction documented by laboratory tests; (6) chronic congestive heart failure; (7) a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or (8) left ventricular dysfunction with an ejection fraction of less than 30 percent. However, the Board assigns a 100 percent rating from January 22, 2015 to July 31, 2015 pursuant to the pre-January 12, 1998 version of Diagnostic Code 7006 as the Veteran experienced a myocardial infarction on January 22, 2015. The Board extends this rating 6 months after January 22, 2015 using the prior rating criteria as it is more favorable to the Veteran. Lastly, for the time period beginning August 1, 2015 onward, the Board continues the Veteran’s 60 percent rating. Again, the Board declines to assign a rating of 100 percent for this time period as the Veteran did not have the requisite symptoms under either the current or prior rating criteria, as described in the section above explaining why the criteria for a rating higher than 60 percent were not met for the period from August 26, 2010 to January 21, 2015. Extra-Schedular Consideration The Board notes that the Veteran’s representative raised the issue of extra-schedular consideration for the Veteran’s service-connected CAD in an April 2017 informal hearing presentation. The United States Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on 38 C.F.R. § 3.321(b)(1) for determining whether a claimant is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant’s disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). (Continued on the next page)   Here, the Board finds that referral for extra-schedular consideration is not warranted in the instant case as the established schedular criteria are adequate to describe the severity and symptoms of the Veteran’s disability. Specifically, the symptoms recounted above in the Findings of Fact section have primarily been angina, shortness of breath, chest discomfort, fatigue, and limitation of physical activities. The pre-January 12, 1998 rating criteria, applicable for entire pendency of the claim in this case, primarily address these symptoms. Accordingly, referral for extra-schedular consideration is denied. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.S. Pettine, Associate Counsel