Citation Nr: 18153627 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 13-22 416 DATE: November 29, 2018 ORDER Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease to include coronary artery disease prior to November 20, 2017. FINDING OF FACT The most probative evidence concerning the Veteran’s ischemic heart disease to include coronary artery disease prior to November 20, 2017, does not show that it is characterized by 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. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for ischemic heart disease to include coronary artery disease are not met prior to November 20, 2017. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an initial disability rating in excess of 10 percent for ischemic heart disease to include coronary artery disease prior to November 20, 2017. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2016). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2017). The Veteran’s ischemic heart disease with coronary artery disease (CAD) with stent placement is rated as 10 percent disabling prior to November 20, 2017 and 100 percent disabling thereafter, under Diagnostic Code 7005. The grant of a 100 percent evaluation from November 20, 2017, represents a full grant of the benefits sought on appeal for that period. Accordingly, the issue of entitlement to a higher rating from November 20, 2017, is no longer on appeal. However, the issue of entitlement to a higher rating prior to November 20, 2017, remains on appeal and will be discussed in this decision. Under Diagnostic Code 7005, arteriosclerotic heart disease (coronary artery disease) resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. The next higher rating of 30 percent is awarded for arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Arteriosclerotic heart disease resulting in 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 results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 100 percent disabling. 38 C.F.R. § 4.104, Diagnostic Code 7005. For rating diseases of the heart, one MET (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. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, 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. In addition, the Rating Schedule provides that, when rating under Diagnostic Codes 7000 through 7007, 7011, and 7015 through 7020, the following provisions apply: (1) 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 in all cases. (2) 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, METs testing is required in all cases 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. (3) 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 (2015). The Veteran submitted an ischemic heart disease disability benefits questionnaire, in which he was diagnosed with coronary artery disease, peripheral arterial disease and hypertension. It was noted that the Veteran’s treatment plan required taking continuous medication. There was a history of percutaneous coronary intervention from April 2011. There was no congestive heart failure reported. No exercise test was conducted. Although no exercise was conducted, the examiner noted that his symptoms include dyspnea and fatigue, which was equivalent to >3-5 METs. The examiner also noted that the Veteran has severe chronic obstructive pulmonary disease (COPD) and used oxygen at home, which causes his symptoms. There was no evidence of cardiac hypertrophy of dilation based on echocardiograms from March 2011. Left ventricle ejection fraction (LVEF) was 60 percent. The examiner found that the Veteran’s ischemic heart disease did not impact his ability to work and noted that he has severe lung disease which limits him. In December 2011 the Veteran underwent a VA ischemic heart disease examination and was diagnosed with ischemic heart disease and a 2011 heart attack. The Veteran continued to take continuous medication. He also underwent percutaneous coronary intervention in April 2011 and experienced myocardial infarction, for which he was not hospitalized. There was no history of coronary bypass surgery, heart transplant, cardiac pacemaker or automatic implantable cardioverter defibrillator (AICD). He did not have congestive heart failure. A diagnostic exercise test was not conducted, but the symptoms included dyspnea and fatigue. His METs levels were 1-3 METs, found to be consistent with activities such as eating, dressing, taking a shower and slow walking for 1 – 2 blocks. There was no evidence of cardiac hypertrophy or dilatation. LVEF was 56 percent, which was based on March 2011 testing. The examiner noted that the Veteran states that since his stents, he carried nitroglycerin with him, but has not used it. He had COPD which limits his ability to work, but has not been having chest pain with normal activities. In this case, the Veteran’s significant COPD, limits his ability to exercise. An exercise stress test in 2011 was stopped at only 61 percent of maximum predicted heart rate, generating only 1.0 METs. In this case, ejection fraction is a much more reliable indicator of cardiac function than is the METs value generated on the inadequate exercise stress test. In April 2013 the Veteran underwent a second VA ischemic heart disease examination. The Veteran’s ischemic heart disease diagnosis was confirmed with a diagnosis of percutaneous coronary intervention. His treatment plan included taking continuous medication. There was no history of myocardial infarction, bypass surgery, heart transplant, implanted cardiac pacemaker or implantable cardioverter defibrillator noted. The Veteran did not have congestive heart failure. There was a diagnostic exercise test conducted in September 2012, which resulted in dyspnea and 1 – 3 METs. No evidence of cardiac hypertrophy or dilatation was found. LVEF was 58 percent based upon September 2012 testing. The Veteran’s ischemic heart disease did impact his ability to do heavy physical employment, but it was probable that the Veteran could do light physical employment if he did not have oxygen dependent COPD. It was further noted that the Veteran’s has severe COPD and is oxygen dependent. He was limited in his endurance due to his COPD. He has been prescribed nitroglycerin since receiving his cardiac stents in 2011 and only had to use two in the past 24 months. His most recent echocardiogram was normal. The Veteran’s LVEF is a better indicator of his cardiac status than his METs level. March 2015 VA treatment records showed that the Veteran experienced intermittent episodes of chest pain, which was relieved by nitroglycerin. In March 2017 the Veteran testified at Board videoconference hearing. He testified that he took nitroglycerin pills and experienced heart pain daily. He further testified that he is bedridden for about a half hour due to his heart pain and needs assistance with daily living. There Veteran also testified that he had lost 60 pounds over the last two years, which he attributed to his heart condition. He also continued to use supplemental oxygen and had not left the house in four months. However, he did not require any hospital visits due to his heart condition. April 2017 VA treatment records noted that there was no cause of tachycardia seen The Veteran most recently underwent a VA heart examination in July 2018. He was diagnosed with coronary artery disease, stable angina and acute, subacute or old myocardial infarction. His medical history included an onset of ischemic heart disease to include coronary artery disease in April 2011. The Veteran developed chest pain and worsening shortness of breath and sought treatment and was admitted the hospital, resulting in three stents. He now has intermittent chest pain (angina) relieved by nitroglycerin. The Veteran’s old myocardial infarction, coronary artery disease and stable angina qualified within the generally accepted medical definition of ischemic heart disease. The etiology of his conditions included CAD due to unknown etiology, myocardial infarction secondary to CAD, stable angina secondary to CAD, tachycardia secondary to CAD and aortic stenosis secondary to CAD. Continuous medication was required for control of the Veteran’s heart condition. The Veteran had myocardial infarction in April 2011. There was no congestive heart failure. Cardiac arrhythmia was noted as severe tachycardia. Frequency was noted intermittent, with one to four episodes in the past 12 months. The Veteran was also found to have aortic sclerosis. There was no history of infectious heart conditions or pericardial adhesions. The Veteran had not been hospitalized for treatment other than for his stent surgery which was performed in April 2011. A physical examination showed a heart rate of 74, point of maximal impact at fourth intercoastal space, normal heart sounds, no jugular-venous distensions, clear auscultation of the lungs, normal pedal pulses and no peripheral edema. His blood pressure of 98/58. There was no evidence of cardiac hypertrophy or cardiac dilatation. A November 2017 echocardiogram revealed severe tachycardia, rate 147. A November 2017 chest x-ray showed calcified granulomas, pulmonary fibrosis and COPD changes. A November 2017 echocardiogram showed LVEF of 50 – 55 percent. Wall motion and wall thickness was normal. An exercise stress test was not performed because the Veteran had severe COPD and was oxygen dependent and since his cardiac stents experiences angina on mild exertion. Interview based METs test included symptoms of dyspnea and angina. The results were 1 – 3 METs consistent with activities such as eating, dressing, taking a shower and slow walking for 1 – 2 blocks. Although the METs level provided was not due solely to the heart condition, the examiner estimated that METs level due solely to the heart condition were 1 – 3 METs. It was noted that the Veteran has severe COPD and is oxygen dependent, but since cardiac stents experiences angina on even mild exertion. The Veteran’s heart condition did impact his ability to work and it was noted that the Veteran has severe COPD and is oxygen dependent, but since cardiac stents experiences angina on even mild exertion. In this case, the Board finds that the criteria for an initial rating in excess of 10 percent, prior to November 20, 2017, are not met. Here, the July 2011 examiner and December 2011 VA examiner indicated an interview-based METs level of 1 to 3 METs. However, both examiners stressed that the Veteran had severe COPD which caused his symptoms. The December 2011 VA examiner explained that the Veteran’s LVEF of 56 percent was the much more reliable indicator of cardiac function. In addition, the April 2013 VA examination report showed LVEF of 58 percent, but no worse, and opined on the fact that the LVEF was the better indicator of cardiac function that METs due to his COPD. The Board assigns great probative value to the December 2011 and April 2013 VA examiners’ opinions as the examiners explained the LVEF percentage most accurately reflected the Veteran’s current cardiac functional level due to the non-service connected COPD. The Veteran is in receipt of a 100 percent disability rating, effective November 20, 2017. This is the maximum disability rating under DC 7005 and is based upon the July 2018 VA examination. The July 2018 VA examiner based her findings on an in-person VA examination and a review of the Veteran’s claims file, including most recent November 20, 2017 echocardiogram. The Veteran is not entitled to a 100 percent disability rating prior to that date, because it is the first indication of record that shows that the Veteran’s METs level due solely to the heart condition were 1 – 3 METs. Considering the above, the Veteran’s ischemic heart disease with coronary artery disease does not warrant an initial rating in excess of 10 percent. A 30 percent rating is not warranted as the coronary artery disease has not resulted in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. There is no evidence of an episode of congestive heart failure prior to November 2017. 38 C.F.R. § 4.104, Diagnostic Code 7005. There is no identifiable period during the appeal period prior to November 20, 2017 that would warrant an initial rating in excess of 30 percent for ischemic heart disease with coronary artery disease. Staged ratings are not appropriate. See Fenderson, supra. In light of the above, a preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Extra-Schedular Consideration The Board considered referral for extra-schedular consideration. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extra-schedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1) (2017). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a Veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. With respect to the third prong in Thun, the evidence in this case does not show such an exceptional or unusual disability picture that the available schedular rating for the service-connected ischemic heart disease is inadequate. Although the Veteran has claimed that his ischemic heart disease shows an exceptional or unusual disability picture, it was found by both the December 2011 and April 2013 VA examiners that the Veteran’s ischemic heart disease did not impact his ability to obtain employment. 38 C.F.R. § 4.130. Furthermore, none of the examinations reflect that he Veteran requires frequent hospitalization. The Veteran also testified during his Board hearing that he did not require hospital visits due to his ischemic heart disease. All of the examiners prior to July 2018 VA examiner determined that the Veteran’s functional impact was due largely to his non-service connected COPD. Although the Veteran testified during his Board hearing that he had difficulty with daily activities, the symptoms described were consistent with those described during his December 2011 and April 2013 VA examinations. The Veteran has complained of intermittent chest pain, dyspnea, fatigue and angina. The Board finds that the manifestations of the Veteran’s service-connected ischemic heart disease are reasonably described by the rating criteria. The Veteran’s symptoms are taken into account by the Veteran’s current schedular rating. See Thun, 22 Vet. App. at 115. In summary, the available schedular rating is adequate to rate the Veteran’s ischemic heart disease prior to November 20, 2017, and the first step of the inquiry is not satisfied. Id. Referral for extra-schedular consideration is not warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel