Citation Nr: 18152524 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-61 793 DATE: November 23, 2018 ORDER Entitlement to an initial rating in excess of 60 percent for coronary artery disease, old myocardial infarction, atherosclerotic cardiovascular disease associated with herbicide agent exposure is denied. Entitlement to an effective date prior to May 20, 2014, for the award of service connection for coronary artery disease is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status is remanded. FINDINGS OF FACT 1. The Veteran’s coronary artery disease was not manifested by chronic congestive heart failure, or 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. 2. The Veteran’s claim for service connection for coronary artery disease was received by the RO on May 20, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 60 percent for coronary artery disease, old myocardial infarction, atherosclerotic cardiovascular disease associated with herbicide agent exposure have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.14, 4.104, Diagnostic Code 7005. 2. The criteria for an effective date prior to May 20, 2014, for the award of service connection for coronary artery disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1967 to March 1971 and from May 1974 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction currently resides with the Winston-Salem, North Carolina RO. 1. Entitlement to an initial rating in excess of 60 percent for coronary artery disease, old myocardial infarction, atherosclerotic cardiovascular disease associated with herbicide agent exposure. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has held that in determining the present level of a disability for any increased evaluation 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. Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. The RO has rated the Veteran’s coronary artery disease under Diagnostic Code 7005 for arteriosclerotic heart disease. Under Diagnostic Code 7005, a 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a 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. 38 C.F.R. § 4.104, Diagnostic Code 7005. A note prior to the Diagnostic Codes explains that one MET 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. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing 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). The Veteran submitted a private ischemic heart disease disability benefits questionnaire in June 2014. The private physician diagnosed the Veteran with coronary artery disease and noted a history of percutaneous coronary intervention. The Veteran was not found to have congestive heart failure. A diagnostic exercise test was not conducted. An EKG showed normal sinus rhythm. The Veteran was afforded a VA examination in March 2015. The examiner diagnosed the Veteran with coronary artery disease, atherosclerotic cardiovascular disease, and myocardial infarction. The Veteran reported the onset of symptoms in September 2013. He reported having experienced angina, shortness of breath, dizziness, syncope, and fatigue. The examiner noted that the Veteran’s heart condition required treatment with continuous medication and the Veteran reported taking hydrochlorothiazide, lisinopril, aspirin, loratadine, and prazosin. An EKG revealed left arterial enlargement hypertrophy and ischemia. The examiner conducted an interview-based METs test and estimated, based on the Veteran’s reported symptoms of dyspnea, fatigue, angina, dizziness, and syncope that he had a level of 3-5 METs. The Veteran was not found to have congestive heart failure. Upon review, the Board finds that the criteria for a disability rating in excess of 60 percent for coronary artery disease have not been met during the appeal period. The evidence has not established that coronary artery disease is manifested by chronic congestive heart failure or by dyspnea, fatigue, angina, dizziness or syncope with a workload of 3 METs or less. The evidence does not show left ventricular dysfunction with an ejection fracture of less than 30 percent. The Board finds the March 2015 VA examination to be the most probative evidence in evaluating the Veteran’s claim. In that regard, there does not appear to be any other medical evidence in the claims file that suggests a disability picture that manifest or more nearly approximate the criteria for a 100 percent evaluation. The Veteran has not contended that the VA examination was inadequate or incorrect, nor does the evidence of record contradict the findings of the March 2015 VA examiner. For the reasons set forth above, the Board concludes that the preponderance of the evidence is against the claim for an increased rating for coronary artery disease in excess of 60 percent for the entire period on appeal. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). 2. Entitlement to an effective date prior to May 20, 2014, for the award of service connection for coronary artery disease. In a July 2015 Notice of Disagreement, the Veteran’s representative stated that he was seeking an earlier effective date for the grant of service connection for coronary artery disease. Service connection was granted in a May 2015 rating decision and an effective date of May 20, 2014 was assigned. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129 (1992). A review of the record indicates that the Veteran did not submit any written correspondence which could be construed as a formal or informal claim of entitlement to service connection for coronary artery disease, or any cardiovascular disorder, prior to May 20, 2014. The Board notes that in September 2013 correspondence, the Veteran requested to expedite his claim that was then before the Board and in support of his request mentioned that he had serious medical conditions including a heart attack. However, the Veteran did not indicate a desire to file a claim for service connection for a heart attack in that correspondence. The Board has considered the applicable law and regulations, to include those that apply to informal claims (for the period in question) but cannot find a basis for establishing an earlier effective date under the facts of this appeal. In this regard, the Veteran did not file a formal claim or indicate a desire to file a claim for coronary artery disease prior to the current effective date. As discussed above, an award of service connection is effective as of the date a claim is received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). The Board finds that an effective date prior to May 20, 2014 is not warranted, as neither the Veteran nor any representative filed a claim for service connection for coronary artery disease or for any other cardiovascular disability prior to this date. Thus, the appeal must be denied. Id. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. Regarding the service connection claim for hypertension, it appears that there are outstanding service treatment records. The May 2015 rating decision on appeal stated that service treatment records from March 1967 through May 1974 were reviewed. The Veteran’s DD-214 indicates that he also served in the United States Army from May 1974 through August 1977. It does not appear that all of the service treatment records from the Veteran’s second period of service are associated with the claims file. Specifically, there is no separation examination or report of medical history from his second period of service. Accordingly, upon remand, the AOJ should obtain service treatment records from May 1974 through August 1977. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or housebound status is remanded. The Veteran contends SMC is warranted based on the need for regular A&A and housebound status. He submitted a June 2014 examination from his private physician. However, service connection has since been awarded for PTSD and a 50 percent rating has been assigned. Therefore, the Board finds that a new VA examination should be obtained on remand. The matters are REMANDED for the following action: 1. Obtain service treatment records associated with the Veteran’s period of service from May 1974 through August 1977 and associate them with the claims file. Perform any and all follow-up as necessary, and document negative results. Any negative search results should be noted in the record and communicated to the Veteran pursuant to 38 C.F.R. § 3.159(e). 2. The AOJ should schedule the Veteran for a VA aid and attendance examination. The examiner should review the record. All indicated tests and studies should be performed, and all findings should be set forth in detail. The examiner should comment on whether the Veteran is able to dress or undress himself, or to keep himself ordinarily clean and presentable; whether he has the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); whether the Veteran is able to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. The examiner should also indicate if the Veteran is substantially confined to his dwelling and the immediate premises. Service connection is in effect for coronary artery disease and PTSD. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the (Continued on the next page)   inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the severity of the disability at issue or because of some other reason. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel