Citation Nr: 18153464 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-09 406 DATE: November 27, 2018 ORDER Entitlement to an initial disability rating of 30 percent, but no higher, for coronary artery disease status post myocardial infarction and coronary artery bypass graft (coronary artery disease) prior to January 6, 2009 is granted. Entitlement to a disability rating in excess of 30 percent for coronary artery disease from January 6, 2009 to April 14, 2009 is denied. Entitlement to a disability rating in excess of 60 percent for coronary artery disease from April 15, 2009 to May 4, 2009 is denied. Entitlement to a disability rating in excess of 30 percent for coronary artery disease from September 1, 2009 to February 11, 2016 is denied. Entitlement to a disability rating in excess of 60 percent for coronary artery disease from February 12, 2016, forward, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to service-connected disabilities is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From March 10, 2008 to January 5, 2009, the Veteran’s coronary artery disease was characterized by evidence of borderline cardiac dilatation. 2. From January 6, 2009 to April 14, 2009, the Veteran’s coronary artery disease was characterized by evidence of cardiac hypertrophy; a workload of metabolic equivalent of tasks (METS) level of 9.9; and left ventricular dysfunction with an ejection fraction greater than 50 percent. 3. From April 15, 2009 to May 4, 2009, the Veteran’s coronary artery disease was characterized by left ventricular dysfunction with an ejection fraction of 40 to 45 percent. 4. From September 1, 2009 to February 11, 2016, the Veteran’s coronary artery disease was characterized by a METs level greater than 5 but not greater than 7 resulting in dyspnea and left ventricular dysfunction with an ejection fraction greater than 50 percent. 5. From February 12, 2016, forward, the Veteran’s coronary artery disease is characterized by left ventricular dysfunction with an ejection fraction of 42 percent and a METs level greater than 5 but not greater than 7 resulting in dyspnea. CONCLUSIONS OF LAW 1. From March 10, 2008 to January 5, 2009, the criteria for entitlement to an initial rating of 30 percent, but not higher, for coronary artery disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005-7006. 2. From January 6, 2009 to April 14, 2009, the criteria for entitlement to a rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005-7006. 3. From April 15, 2009 to May 4, 2009, the criteria for entitlement to a rating in excess of 60 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005-7006. 4. From September 1, 2009 to February 11, 2016, the criteria for entitlement to a rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7006-7017. 5. From February 12, 2016, forward, the criteria for entitlement to a rating in excess of 60 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7006-7017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to March 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio which, in pertinent part, increased the initial rating assigned to the Veteran’s coronary artery disease, and denied service connection for depression. A February 2015 rating decision denied entitlement to a TDIU. In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims file. In June 2017, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. Increased Rating for Coronary Artery Disease VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). As is the case here, in initial-rating cases, where the appeal stems from a rating decision granting service connection with respect to the initial evaluation assigned the disability at issue, VA assess the level of disability from the effective date of service connection. Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran’s coronary artery disease status post myocardial infarction and coronary artery bypass is currently rated as 10 percent disabling prior to January 6, 2009; 30 percent disabling from January 6, 2009 to April 14, 2009; 60 percent disabling from April 15, 2009 to May 4, 2009; 100 percent disabling from May 5, 2009 to August 31, 2009; 30 percent disabling from September 1, 2009 to February 11, 2016; and 60 percent disabling thereafter under 38 C.F.R. § 4.104, Diagnostic Codes 7005-7006; 7006-7017. See March 2018 Rating Decision. See, too 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Diagnostic Code 7005 refers to coronary artery disease. Diagnostic Code 7006 refers to myocardial infarction. Diagnostic Code 7017 refers to coronary bypass surgery. 38 C.F.R. § 4.104. As the Veteran was granted a 100 percent rating from May 5, 2009 to August 31, 2009, that period is not for consideration by the Board. Under Diagnostic Codes 7005, 7006, and 7017, a workload of greater than 7 METs but not greater than 10 METs that result in dyspnea, fatigue, angina, dizziness, or syncope, or; where continuous medication is required is rated at 10 percent. A workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray is rated at 30 percent. 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 (LVEF) of 30 to 50 percent is rated at 60 percent. Finally, chronic congestive heart failure, or; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent is rated a maximum 100 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005, 7006. One MET is defined as 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 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). In all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained. Even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication, when the left ventricular ejection fraction has been measured and is 50 percent or less, when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year, and when a 100 percent evaluation can be assigned on another basis. If left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran’s cardiovascular disability. 38 C.F.R. 4.100. A November 2008 VA examination noted the Veteran suffered a myocardial infarction in 2005. Following this, he was prescribed Aspirin, Plavix, Lisinopril, Atenolol, and Zocor. See November 2008 VA Examination Report. An echocardiogram showed his left ventricle was borderline dilated. See November 2008 Echocardiography Report. A January 2009 echocardiogram report reflected the Veteran had mild concentric left ventricular hypertrophy. His LVEF was recorded as between 50 percent and 60 percent. See January 2009 Sunrays Cardiology Report. A March 2009 VA examination noted there was no evidence of congestive heart failure. The Veteran’s exercise stress test resulted in a workload of 9.9 METs, and the Veteran had an LVEF of 59 percent. Left ventricular function was normal. The examination report reflected the Veteran was currently treated with Aspirin and Diovan. See March 27, 2009 VA Heart Examination Report. It was also noted that a recent VA echocardiogram showed an ejection fraction of 55 percent. A treadmill stress test of April 7, 2009 resulted in a workload of 9.9 METs. See April 2009 Medical Center of Newark Report. Left ventricular function was normal and the ejection fraction was 59 percent. An April 15, 2009 echocardiogram report reflected the Veteran had moderate left ventricular systolic dysfunction. His LVEF was recorded as between 40 percent and 45 percent. See April 2009 Licking Memorial Hospital Report. A November 2010 VA Heart examination noted the Veteran experienced daily chest pain with exertion Monday through Friday at work. He was recorded as being treated with Aspirin and fish oil. The examiner estimated his workload at 7 METs. No acute cardiopulmonary abnormalities were found. See November 2010 VA Heart Examination. There was no evidence of congestive heart failure. A December 2010 VA echocardiogram showed a normal ejection fraction. See December 28, 2010 addendum. An October 2014 VA examination noted the Veteran’s coronary artery disease required continuous medication. Following review of an October 16, 2014 echocardiogram, it was noted that there was no evidence of cardiac hypertrophy or cardiac dilatation and that the Veteran’s LVEF was greater than 50 percent. His interview-based METs test was found to be between 5 and 7, resulting in dyspnea. See October 2014 Heart Conditions Disability Benefits Questionnaire (DBQ), signed October 21, 2014. The Veteran did not have congestive heart failure. A January 29, 2016 exercise stress test showed that the Veteran had below average functional capacity. See January 2016 Licking Memorial Exercise Stress Test Report. A February 12, 2016 echocardiography report found the Veteran’s left ventricle to be mildly dilated. His LVEF was noted to be moderately reduced at 43 percent. See February 2016 Licking Memorial Hospital Report. At the Board hearing, the Veteran testified to being on continuous medication since his bypass grafts in 2009. See August 2016 Hearing Transcript. Following the Board’s June 2017 remand, the Veteran underwent a November 2017 VA examination. The Veteran reported intermittent midsternal chest pain in cold weather, after eating, and after going up a flight of stairs. His continuous medication was noted as daily Aspirin. There was no evidence of cardiac hypertrophy. The examiner noted the Veteran’s February 2016 echocardiogram indicating cardiac dilatation and a reduced LVEF of 43 percent. During his interview based METs test, the Veteran denied experiencing symptoms. The examiner estimated the Veteran’s METs level to be between 5 and 7 METs. See November 2017 Heart Conditions DBQ. A December 7, 2017, echocardiogram revealed no obvious abnormalities, but it was very technically incomplete. See December 7, 2017 VA Cardiology Consult. A January 2018 VA treatment note reflected the Veteran had an ejection fraction of 42 percent with a septal wall motion abnormality that was not present on echocardiography. See January 29, 2018 Cardiology Nursing Note. Based on the foregoing, the Board finds that, prior to January 6, 2009, the Veteran’s coronary artery disease was manifest by borderline cardiac dilation. In this regard, the November 2008 VA echocardiography report showed that his left ventricle was borderline dilated. See November 2008 Echocardiography Report. Although the cardiac dilation was described as “borderline,” resolving doubt in the Veteran’s favor, the Board finds that an initial rating of 30 percent is warranted prior to January 6, 2009. 38 C.F.R. §§ 3.102, 4.7. For the entire appellate period prior to April 15, 2009, (i.e., from March 10, 2008 to April 14, 2009) the Board finds that a rating in excess of 30 percent is not warranted. During this time period, the evidence does not show that the Veteran had any episodes of congestive heart failure in the past year, a workload greater than 3 METs but no greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of 30 to 50 percent. Rather, the Veteran’s workload was recorded as 9.9 METs, and his LVEF was greater than 50 percent (i.e., recorded as between 50 percent and 60 percent, 55 percent, and 59 percent). See January 2009 Sunrays Cardiology Report; April 2009 Medical Center of Newark Report. From April 15, 2009 to May 4, 2009, the Board finds that a rating in excess of 60 percent is not warranted at any time. In this regard, there was no evidence of chronic congestive heart failure or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope. Further, the Veteran’s LVEF at its lowest was 40 percent. See April 2009 Licking Memorial Hospital Report (recording his LVEF at 40 percent to 45 percent); April 2009 Heart Examination Report (reflecting a workload of 9.9 METs). From September 1, 2009 to February 11, 2016, the Board finds that a rating in excess of 30 percent is not warranted at any time. During this time period, the evidence does not show that the Veteran had any episodes of congestive heart failure; a workload greater than 3 METs but no greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of 30 to 50 percent. Rather, the Veteran’s workload was at worst recorded as from 5 to 7 METs and his LVEF was noted as being normal in December 2010 and as greater than 50 percent in October 2014. See November 2010 VA Heart Examination and December 2010 addendum; October 2014 Heart Conditions DBQ. Finally, from February 12, 2016, forward, the Board finds that a rating in excess of 60 percent is not warranted at any time. Here, the Veteran was not found to have chronic congestive heart failure, his workload was between 5 and 7 METs, and his LVEF at its lowest was 42 percent. See February 2016 Licking Memorial Hospital Report; November 2017 Heart Conditions DBQ; and January 29, 2018 Cardiology Nursing Note. The Board has considered the Veteran’s claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to service-connected disabilities, is remanded. A November 2017 VA examiner stated the Veteran did not have a current mental disorder diagnosis. See November 2017 Mental Disorders DBQ. The Board notes that, contrary to the VA examination report, the Veteran has been diagnosed with unspecified depressive disorder. See February 2017 Mental Health Consult. Therefore, the Board finds the November 2017 VA examination report inadequate. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Accordingly, an addendum medical opinion must be obtained with respect to the Veteran’s claim for service connection for an acquired psychiatric disorder, as set forth below. 2. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. Since the TDIU claim is inextricably intertwined with the service connection claim, it is also being remanded. See 38 C.F.R. § 4.16 (a) (2017); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (claims are inextricably intertwined when they have common parameters, such as when the outcome of one may affect the outcome of the other. And to avoid piecemeal adjudication of these types of claims, they should be considered together). Finally, as this matter is being remanded, the Veteran’s updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Make arrangements to obtain the Veteran’s VA treatment records, dated from March 2018, forward. 2. Thereafter, arrange for a VA psychiatrist or psychologist to review the Veteran’s claims file. The Veteran should not be scheduled for an examination unless deemed necessary by the VA medical professional rendering an opinion on this claim. The entire claims file must be reviewed by the examiner in conjunction with the opinion. The examiner should confirm in the examination report that he or she has reviewed the folder. The examiner must address the following: a) Identify all psychiatric disorders that have been present since 2009, including an unspecified depressive disorder. See February 2, 2017 VA Mental Health Consult. The VA examiner is advised that for VA compensation purposes a current diagnosis includes any diagnosis since the claim was filed. In this case, the claim was filed in March 2009, and all DSM-5 Axis I psychiatric diagnoses since then must be considered, even if they later resolve during the appeal period. b) As to EACH diagnosed psychiatric disorder, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its clinical onset during service or is related to any incident of service, specifically considering any psychiatric complaints or evaluation made in 1967 after treatment at Walter Reed Hospital for a respiratory complaint. c) As to EACH diagnosed psychiatric disorder, to include depression, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that it is proximately due to, or the result of, his service-connected disabilities. d) As to EACH diagnosed psychiatric disorder, to include depression, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that it has been aggravated by his service-connected disabilities. (Continued on the next page)   A supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any opinion as requested, the examiner should fully explain the reason why such opinion could not be rendered. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. M. Stedman, Associate Counsel