Citation Nr: 18154052 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-48 030 DATE: November 29, 2018 ORDER Effective February 16, 2007, entitlement to a disability rating of 100 percent for atherosclerotic heart disease, status post coronary artery bypass graft, is granted, subject to the regulations governing monetary awards. FINDING OF FACT Since February 16, 2007, the Veteran’s atherosclerotic heart disease, status post coronary artery bypass graft, was manifested by chronic congestive heart failure. CONCLUSION OF LAW Effective February 16, 2007, the criteria for a disability rating of 100 percent for atherosclerotic heart disease, status post coronary artery bypass graft, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Army from June 1967 to February 1969. The Veteran is a Vietnam Era Veteran with service in the Republic of Vietnam. The Veteran died on January [redacted], 2014, after filing the claim on appeal. See Death Certificate. The Appellant is the Veteran’s surviving spouse. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. By way of procedural history, service connection for atherosclerotic heart disease in a May 2011 Board decision. The Board decision was effectuated in a July 2011 rating decision, which assigned a disability rating of 10 percent from May 23, 2003 to February 13, 2007, and 60 percent disability rating from February 16, 2007. A July 2012 rating decision assigned a 100 percent disability rating from August 11, 2011. In July 2012, the Veteran filed a timely notice of disagreement with the July 2012 rating decision and indicated that he was only disagreeing with his disability rating since February 16, 2007. He did not file a timely notice of disagreement with the July 2011 rating decision or express disagreement with his disability rating for the period prior to February 16, 2007. To the contrary, the Veteran stated that the correct effective date for his 100 percent rating was February 16, 2007. Accordingly, the Board finds that the Veteran limited his appeal to the period beginning February 16, 2007. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a claimant may limit his appeal to less than the maximum benefit if he expresses a clear intent to do so); Hamilton v. Brown, 4 Vet. App. 528 (1993) (“where... the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims”). The Board acknowledges the Appellant’s assertion that a 100 percent rating was warranted for the Veteran’s atherosclerotic heart disease since at least February 2007. However, as discussed above, the Veteran specifically limited his appeal to the period beginning February 16, 2007. Moreover, the regulations expressly state that “[a] substitute may not add an issue or expand a claim. Accordingly, the propriety of the Veteran’s disability rating prior to February 16, 2007 is not before the Board.” 38 C.F.R. § 3.1010(f)(2) (2018). Finally, as the Veteran was in receipt of the maximum disability rating for his atherosclerotic heart disease since August 11, 2011, the period since August 11, 2011 is not on appeal. This case was previously before the Board in September 2013, when the case was remanded for the RO to issue a statement of the case. A statement of the case was sent to the Appellant in June 2016. Thus, the Board finds that there has been substantial compliance with the prior remand directives. See D’Aries v. Peake, 22 Vet App. 97 (2008). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Entitlement to an effective date prior to August 11, 2011, for the 100 percent evaluation assigned for atherosclerotic heart disease, status post coronary artery bypass graft Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2018). Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2018). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2018); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14 (2018); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2018). A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Here, the Veteran’s service-connected atherosclerotic heart disease status post coronary artery bypass graft has been rated under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7005, which governs arteriosclerotic disease. Diagnostic Code 7005 establishes the following criteria: A 60 percent disability rating is warranted when the arteriosclerotic heart disease presents with 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. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2018). A maximum disability rating of 100 percent is warranted when the arteriosclerotic heart disease presents with 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. Id. In February 2007, the Veteran was seen at the VA, complaining of shortness of breath upon exertion for the prior six to twelve months. His chest pain was not associated with activity or shortness of breath. A myocardial perfusion thallium test revealed that the Veteran’s heart was enlarged, and that he had an ejection fraction of 38 percent, “which is below the lower limits of normal.” The abnormal myocardial perfusion scan demonstrated large areas of scar tissue with at least mild ischemia remaining in the lateral myocardium. In March 2007, the Veteran was seen for by the VA cardiology clinic. He was found to have severely reduced systolic function, with an ejection fraction estimated to be between 25 and 30 percent. This was confirmed by a left ventriculogram that indicated a left ventricular ejection fraction to be between 25 percent and 30 percent, and an echocardiogram that revealed an ejection fraction of less than 30 percent. The Veteran’s test results were consistent with poorly controlled congestive heart failure. The Veteran was treated at the VA in April 2007, on numerous occasions, for his cardiac condition, including two inpatient admissions. The Veteran had an estimated ejection fraction of 40 percent and was noted to have congestive heart failure. A May 2007 VA treatment record again noted that the Veteran had congestive heart failure. At a July 2007 cardiology appointment, the Veteran’s ejection fraction was 40 percent, but the provider noted that his ejection fraction had improved after medical therapy. Per the provider’s documentation, the Veteran’s Myoview in February 2007 revealed an ejection fraction of 38 percent and a note in June 2007 indicated an ejection fraction of 25 percent to 30 percent. In August 2007, the Veteran was admitted to the VA medical center for chest tightness and worsening shortness of breath associated with diaphoresis. A repeat echocardiogram, which demonstrated an ejection fraction of 30 percent. He was noted to have fluid overload secondary to congestive heart failure. VA treatment records from September 2007 and November 2007 note congestive heart failure on the Veteran’s ongoing problem list. An October 2008 VA diabetes mellitus examination report noted that the Veteran comorbidities included heart disease with “worsening heart failure symptoms.” VA treatment records from February 2009 and September 2010 again note congestive heart failure on the Veteran’s ongoing problem list. The Veteran received a VA examination to determine the severity of his heart disease in May 2012. The examiner noted that the Veteran was diagnosed with chronic congestive heart failure. However, the examiner did not provide the date that the Veteran was diagnosed with chronic congestive heart failure. After reviewing all the evidence of record, the Board finds that the Veteran’s atherosclerotic heart disease, status post coronary artery bypass graft, was manifested by chronic congestive heart failure throughout the pendency of the appeal. VA treatment records repeatedly note that the Veteran had congestive heart failure, the October 2008 VA examiner indicated that the Veteran’s heart failure symptoms were ongoing, and the May 2012 examiner opined that the Veteran’s congestive heart failure was chronic rather than acute. Accordingly, the Board will resolve doubt in favor of the Veteran and find that he had chronic congestive heart failure since February 2007. Thus, the criteria for a 100 percent disability rating for atherosclerotic heart disease, status post coronary artery bypass graft, have been met since February 16, 2007. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2018); Gilbert, 1 Vet. App. at 53-56. J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel