Citation Nr: 18151732 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-09 593 DATE: November 20, 2018 ORDER Entitlement to an initial compensable rating in excess of 30 percent for coronary artery disease prior to December 15, 2015, and in excess of 60 percent thereafter is denied. Entitlement to an initial compensable rating for linear and nonlinear scars associated with coronary artery bypass graft is denied. Entitlement to an initial compensable rating for a nonlinear scar associated with coronary artery bypass graft is denied. REMAND The issue of entitlement to TDIU is remanded. FINDINGS OF FACT 1. Prior to December 15, 2015, the Veteran’s heart condition was characterized by a left ventricular dysfunction with an ejection fraction of greater than 50 percent and by the requirement of continuous medication. 2. Since December 15, 2015, the Veteran’s coronary artery disease was characterized by left ventricular dysfunction with an ejection fraction of 55 percent or greater, and a workload greater than 3 METs but not greater than 5 METs, resulting in angina, dyspnea, and fatigue. 3. The Veteran’s linear scars associated with coronary artery bypass graft do not have lesions, are not painful and unstable, and do not require systemic therapy. 4. The Veteran’s nonlinear scar associated with coronary artery bypass graft does not cover an area greater than 929 square centimeters and is not painful or unstable. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for coronary artery disease for the period prior to December 15, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.307, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7017. 2. The criteria for a rating in excess of 60 percent for coronary artery disease for the period since December 15, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.307, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7017. 3. The criteria for an initial rating in excess of noncompensable for linear scars associated with coronary artery bypass graft have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.307, 4.1, 4.3, 4.31, 4.7, 4.118, Diagnostic Code 7805. 4. The criteria for an initial rating in excess of noncompensable for a nonlinear scar associated with coronary artery bypass graft have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.307, 4.1, 4.3, 4.31, 4.7, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to July 1977, including a tour of duty in Korea. The Board notes that the Veteran currently has two separate appeals before the Board, one of which is not yet ripe for adjudication. The issues in the case at hand, increased rating for coronary artery disease and increased rating for scars associated with coronary artery bypass graft, were certified to the Board in July 2017. The Veteran’s second case on appeal before the Board was certified to the Board in July 2018, and will be addressed in docket order at a later date. The Board notes that it is unclear whether a statement of the case was issued on the question of entitlement to a compensable rating for his linear scar. However, the Board may evaluate all scars collectively, as they arise from a common etiology. As such, there is no prejudice in adjudication of the appeal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which 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. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). 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 evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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. 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 permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Coronary Artery Disease In a March 2015 rating decision, the Veteran was granted service connection for coronary artery disease with a 30 percent rating and an effective date of February 24, 2011. The Veteran filed a timely notice of disagreement in April 2015 stating that he sought an increased rating. In a February 2016 rating decision, the Veteran’s rating for coronary artery disease was increased to 60 percent. Prior to December 15, 2015 The Veteran received a 30 percent disability rating prior to December 15, 2015, for his coronary artery disease under 38 C.F.R. § 4.104, DC 7017 (addressing coronary artery disease). Under this Diagnostic Code, a 30 percent rating is assigned for a workload of greater that 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. Metabolic Equivalent of Task, or MET, represents a physiological measure used to determine what activity is appropriate for a person. This MET level of activity is consistent with activities such as walking 1 flight of stairs, golfing without a cart, mowing the lawn with a push mower, and heavy yard work such as digging. In order to warrant the next higher 60 percent rating, the evidence must show one episode of acute congestive heart failure in the past year, or; a workload of greater that 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. This MET level of activity is consistent with activities such as light yard work such as weeding, mowing the lawn using a power mower, and brisk walking. Based on the evidence of record, the Board finds that a rating in excess of 30 percent is not warranted prior to December 15, 2015. In a review of the Veteran’s medical records from February 24, 2011 to December 15, 2015, very few symptoms related to coronary artery disease are reported. Specifically, in the records from a private medical facility, the Veteran reported in June 2011 that he did not have chest pain or shortness of breath. In July 2011 he stated that he was doing well with no angina, shortness of breath, fatigue, or dizziness, and that the only time he had angina was when he exercised more than usual. In July 2012 and March 2013, the Veteran reported that he felt well, walked regularly three times a week, had no angina, did not feel fatigued, and did not have shortness of breath. Additionally, in February 2012 and February 2013 his ejection fraction was estimated to be between 55 to 60 percent. Therefore, the evidence in the Veteran’s private medical records, do not show symptoms that meet the rating criteria required to grant a rating in excess of 30 percent prior to December 15, 2015. The evidence of record does not show symptoms that warrant a rating in excess of 30 percent until the Veteran’s December 15, 2015 VA examination. The examiner found that the Veteran functioned between 3 and 5 METs activity levels. The examiner also found that the Veteran’s ejection fraction was between 55 to 60 percent. This evidence marks the first instance where the Veteran’s symptoms related to coronary artery disease meet the rating criteria for a 60 percent rating, which strongly supports the Board’s finding that a rating in excess of 30 percent was not warranted prior to the Veteran’s December 15, 2015 VA examination. Therefore, entitlement to an initial compensable rating in excess of 30 percent for coronary artery disease prior to December 15, 2015 is denied.   Since December 15, 2015 The Veteran has received a 60 percent disability rating since December 15, 2015, for his coronary artery disease. Under Diagnostic Code 7017, a 100 percent rating is 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. This MET level of activity is consistent with activities such as eating, dressing, taking a shower, and slow walking. Based on the evidence of record, a rating in excess of 60 percent is not warranted for the Veteran’s coronary artery disease for the period since December 15, 2015. Following the Veteran’s December 15, 2015 VA examination, he continued to receive treatment for coronary artery disease. In the Veteran’s treatment records from a private medical facility, in March 2017 his ejection fraction was calculated at 58 percent. In January 2018, he reported episodes of syncope and near-syncope with dizziness after which the Veteran received a pacemaker. Additionally, in January 2018 the private medical records note that the Veteran’s ejection fraction had completely normalized at 60 percent. Regarding the Veteran’s VA treatment records, in January 2017 he reported no chest pain or difficulty breathing. In the last medical treatment record in evidence at the time of adjudication, the February 2018 VA treatment record, the Veteran reported no increased shortness of breath or chest pain. Thus, none of the reported symptoms in these treatment records support a rating in excess of 60 percent. The Veteran’s representative also submitted an appellate brief in August 2017 with supporting medical opinions addressing his symptoms. However, these medical opinions are not based solely on the issues currently before the Board on appeal. The opinions are also based on issues not contained in this appeal, including diabetes mellitus and prostate cancer. In a March 8, 2017 private medical opinion, the doctor states that the Veteran reported that he cannot walk any further than a half block before feeling fatigue, shortness of breath, and chest pain, that he must take frequent naps due to fatigue, that the Veteran hired someone to do outdoor house work such as mowing, and that he could not lift more than 10 pounds as he becomes easily fatigued with light activity. The Board gives little probative weight to this medical opinion as it is not based solely on the issues presently before the Board on appeal. Indeed, the doctor specifically noted that the opinion was based on the Veteran’s combined service connected disabilities. Further this private medical opinion does not provide an assessment involving the rating criteria required for the Veteran to qualify for a rating in excess of 60 percent, such as evidence of chronic congestive heart failure, a workload of 3 METs or fewer, or left ventricular dysfunction with an ejection fraction of less than 30 percent. There is no evidence in the record, including the private treatment records, private medical opinions, or VA treatment records that the Veteran symptoms of coronary artery disease meet the rating criteria required for a rating of 100 percent. Therefore, the Board finds that a rating in excess of 60 percent for coronary artery disease is denied. Increased Rating for Scars Associated with Coronary Artery Bypass Graft The Veteran is also seeking an increased rating for linear and nonlinear scars associated with his coronary artery bypass graft. The Veteran currently receives a noncompensable rating for his superficial linear scars associated with his coronary artery bypass graft under 38 C.F.R. § 4.118, DC 7805 (addressing other superficial scars, including linear). He also currently receives a noncompensable rating for his superficial nonlinear scar associated with his coronary artery bypass graft under 38 C.F.R. § 4.118, DC 7802 (addressing scars not of the head, face, or neck). As an initial matter, DCs 7801 is not applicable, as the Veteran’s scars are not to the head, face or neck. Therefore, in order to warrant a rating in excess of 10 percent for scars not to the head, face or neck, the evidence must show a scar that is: • Deep and nonlinear and an area or areas of at least 6 sq. in. (39 sq. cm) but less than 12 sq. in. (77 sq. cm) (10 percent under DC 7801); • Superficial and linear and an area of 144 sq. in. (929 sq. cm.) (10 percent under DC 7802) • One or two scars in number that are unstable or painful (10 percent under DC 7804); or If one or two scars are both unstable and painful, then a 20 percent rating is warranted under DC 7804, Note (2). See 38 C.F.R. § 4.118. Based on the evidence of record, a compensable rating is not warranted. Specifically, in the December 2015 VA examination, the examiner noted that there were eight linear scars located on the anterior trunk, each measured at 5 centimeters, and were found to be superficial, pain free, and stable. The Veteran’s private treatment records, private medical opinions, and VA treatment records also do not show any evidence that the Veteran’s linear scars have lesions, are painful or unstable. Further, in the December 2015 VA examination, the examiner also noted that there was one nonlinear scar located on the anterior trunk, measured at 32 square centimeters, and found it to be superficial, pain free, and stable. The Veteran’s private treatment records, private medical opinions, and VA treatment records do not show any evidence that the Veteran’s nonlinear scar is painful or unstable or that it covers an area greater than 929 square centimeters. Thus, the Board finds that a compensable rating is not warranted under any diagnostic code for the Veterans scars. In rendering a decision on appeal, the Board has considered the Veterans statements that his disabilities are worse than currently rated. However, competency of evidence differs from weight and credibility. While 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 service-connected disabilities according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994), On the other hand, such competent evidence concerning the nature and extent of the Veteran's scars and heart disorder been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination report) directly address the criteria under which these disabilities are evaluated. REMAND Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Veteran submitted a private medical opinion dated March 8, 2017, regarding unemployability based on coronary artery disease, as well as other service connected disabilities not presently before the Board, including diabetes mellitus and prostate cancer. Thus, the issue of entitlement to TDIU pursuant to 38 C.F.R. § 4.16 has been raised in connection with his increased rating claims. To date, the Veteran has not been provided with the Veterans Claims Assistance Act (VCAA) notice requirement for a TDIU claim. Moreover, it is apparent that the adjudication of this issue may be impossible until the issues subject to the other appeals are resolved. Therefore, on remand, the AOJ should send the Veteran proper notice, afford him the opportunity to file a formal claim for TDIU, and then adjudicate this matter in the first instance to avoid any prejudice to him. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the issue of TDIU is REMANDED for the following action: After any further development deemed necessary, adjudicate the claim for entitlement to TDIU. The Veteran must be informed of his appeal rights and, if he disagrees with the decision, he must submit a timely notice of disagreement and timely substantive appeal, if applicable. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Page-Nelson, Associate Counsel