Citation Nr: 18151230 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-00 718 DATE: November 16, 2018 ORDER Prior to January 25, 2018, an initial rating of 30 percent is granted for ischemic heart disease, characterized as coronary artery disease, status post coronary artery bypass graft. From January 25, 2018, a disability rating of 60 percent is granted for ischemic heart disease, characterized as coronary artery disease, status post coronary artery bypass graft. REMANDED The issue of entitlement to an initial rating in excess of 10 percent for diabetes mellitus type 2 prior to September 26, 2012, and in excess of 20 percent thereafter is remanded. FINDINGS OF FACT 1. Prior to January 25, 2018, ischemic heart disease manifested itself with a workload of greater than 5 METs, but not greater than 7 METs, that resulted in fatigue. 2. From January 25, 2018, ischemic heart disease manifested itself with left ventricular dysfunction with an ejection fraction of 50 percent. CONCLUSIONS OF LAW 1. Prior to January 25, 2018, the criteria for an initial rating of 30 percent for ischemic heart disease had been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7017-7005 (2018). 2. From January 25, 2018, the criteria for a disability rating of 60 percent for ischemic heart disease have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, DC 7017-7005 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to September 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an initial rating in excess of 10 percent prior to September 24, 2014 and in excess of 30 percent thereafter for ischemic heart disease, characterized as coronary artery disease, status post coronary artery bypass graft. In the August 2011 rating decision on appeal, the RO granted service connection for heart disease and assigned an initial 10 percent rating effective the date of claim for service connection on August 31, 2010. During the pendency of the appeal, the RO increased the rating to 30 percent, effective September 25, 2014. The Veteran continues to seek a higher initial rating for ischemic heart disease. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Prior to January 25, 2018 Heart disease has been rated under 38 C.F.R. 4.104, DC 7017-7005. Diagnostic Code 7017 pertains to coronary bypass surgery and DC 7005 pertains to coronary artery disease. Both disabilities are rated using the same criteria, except that DC 7017 allows for a 100 percent disability rating for three months following hospital admission for surgery. These rating formulas incorporate objective measurements of the level of physical activity, expressed numerically in METs, at which cardiac symptoms develop. MET (one metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. See 38 C.F.R. § 4.104, Note 2. Ratings of 10, 30, 60, and 100 percent are authorized under DCs 7005 and 7107. As heart disease has been rated at least 10 percent disabling throughout the appeal period, the Board will limit its analysis to whether a 30, 60, or 100 percent rating has been warranted. Under either DC, a 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where evidence indicates cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. The evidence indicates that an initial rating of 30 percent was warranted prior to January 25, 2018. A September 2005 private treatment record reflects that a workload of 7 METs resulted in the Veteran experiencing fatigue. Similarly, treatment records from February 2006 and March 2011 reflect that he achieved a maximum workload of 7.0 METs before stopping exercise. Such treatment records, along with the credible statements by the Veteran, show that the evidence is at least in equipoise that the Veteran experienced fatigue resulting from a workload of greater than 5 METs, but not greater than 7 METs. See Gilbert and Alemany, both supra. In order to warrant a 60 percent rating under DC 7005 or DC 7017, the evidence must show any of the following: (i) there is more than one episode of acute congestive heart failure in the past year, (ii) a workload of greater than 3 METs, but not greater than 5 METs, results in dyspnea, fatigue, angina, dizziness, or syncope, or (iii) left ventricular dysfunction with an ejection fraction of 30 to 50 percent. After a review of the evidence of record, the Board determines that an initial rating in excess of 30 percent prior to January 25, 2018 is not warranted. Here, no evidence shows any episodes of acute congestive heart failure in the past year, that a workload of greater than 3 METs, but not greater than 5 METs, results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Specifically, the September 2014 VA examination report reflects that the Veteran had not had congestive heart failure. The examiner did not perform METs testing, explaining that METs testing was not a reliable indicator of the Veteran’s cardiac status because his body habitus, poor fitness, and aging would impact the measurement. The examiner also did not identify the Veteran’s left ventricular ejection fraction, stating that an echocardiogram to determine the left ventricular ejection fraction had been ordered. Although the September 2014 VA examiner did not perform METs testing and did not determine the left ventricular ejection fraction, treatment records show that the Veteran did not meet the criteria for an initial rating in excess of 30 percent on either of those grounds. First, no METs testing showed that the Veteran experienced dyspnea, fatigue, angina, dizziness, or syncope at a workload greater than 3 METs, but less than 5 METs. As set forth above, a September 2005 private treatment record reflects that a workload of 7 METs resulted in him experiencing fatigue and treatment records from February 2006 and March 2011 reflect that he achieved a maximum workload of 7.0 METs before stopping exercise. Second, no treatment records reflect that the Veteran experienced left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Specifically, a March 2005 private treatment record reported an ejection fraction of about 60 percent, a September 2005 private treatment record reported an ejection fraction of 70 percent, a May 2006 private treatment record reported an ejection fraction of 60 percent, an August 2007 treatment record reported an ejection fraction of 69 percent, a March 2011 treatment record reported an ejection fraction of greater than 70 percent, an echocardiogram performed in December 2013 showed an ejection fraction of 55 to 60 percent, an April 2014 treatment record reported an ejection fraction of 61 percent, and an October 2015 treatment record reported an ejection fraction of 63 percent. By virtue of the foregoing, the Board concludes that prior to January 25, 2018, the criteria for an initial rating of 30 percent, but no more, had been met. As of January 25, 2018 A rating of 60 percent has been warranted since January 25, 2018. Again, a 60 percent rating is warranted under DCs 7005 and 7017 where (i) there is more than one episode of acute congestive heart failure in the past year, (ii) a workload of greater than 3 METs, but not greater than 5 METs, results in dyspnea, fatigue, angina, dizziness, or syncope, or (iii) left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The evidence is at least in equipoise that the Veteran has experienced left ventricular dysfunction with an ejection fraction of 30 to 50 percent since January 25, 2018. On that date, a VA examiner reported that an echocardiogram revealed an ejection fraction of 50 to 55 percent. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a 60 percent rating were met January 25, 2018. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In order to warrant a 100 percent rating under DCs 7005 and 7017, the evidence must show any of the following: (i) chronic congestive heart failure, (ii) a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or (iii) left ventricular dysfunction with an ejection fraction of less than 30 percent. A 100 percent rating is also warranted under DC 7017 for three months following hospital admission for coronary bypass surgery. See 38 C.F.R. § 4.104. After a review of the evidence of record, the Board determines that a 100 percent rating has not been warranted during the appeal period. The Veteran has not undergone coronary bypass surgery since August 31, 2010. Further, the evidence has not indicated chronic congestive heart failure, METs of 3 or less, or an injection fraction of 30 percent or lower. The January 2018 VA examination report did not indicate any of these criteria. Further, no treatment records since the January 2018 VA examination discuss the criteria for a 100 percent rating. In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that his ischemic heart disease is worse than the rating that he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his ischemic heart disease according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). The Board finds the medical findings of record more probative than the Veteran’s lay assertions with regard to whether the relevant criteria have been approximated. REASONS FOR REMAND The issue of entitlement to an initial rating in excess of 10 percent prior to September 25, 2012 and in excess of 20 percent thereafter for diabetes mellitus type 2 is remanded. The Veteran was afforded a VA examination in November 2011, approximately seven years ago, to assess the nature and severity of his service-connected diabetes mellitus type 2. In his January 2016 notice of disagreement, the Veteran asserted that his diabetes mellitus type 2 has worsened. The Veteran’s treatment records, including a November 2015 treatment record, reflect that in addition to regulated activity and a restricted diet, the Veteran has been prescribed insulin. Thus, the clinical evidence including the November 2015 treatment record, in conjunction with his credible statements, suggest that his service-connected diabetes mellitus type 2 has worsened since the November 2011 VA examination. Therefore, he should be afforded a new examination in order to accurately assess the current nature, extent, and severity of his diabetes mellitus type 2. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matter is REMANDED for the following action: 1. Include in the claims file any outstanding VA medical evidence. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Schedule an examination to determine the nature and severity of diabetes mellitus type 2. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel