Citation Nr: 18157027 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-44 424 DATE: December 11, 2018 ORDER Entitlement to a 100 percent rating for service-connected coronary atherosclerotic heart disease following a heart attack on November 12, 2012 is granted, from November 12, 2012 to February 13, 2013 only. REMANDED Entitlement to service connection for sleep apnea disability remanded. Entitlement to service connection for restless leg syndrome is remanded. FINDING OF FACT 1. The Veteran suffered a non-ST elevated myocardial infarction (heart attack) on November 12, 2012. 2. The Veteran was hospitalized for three days following his November 12, 2012 heart attack and insertion of a stent, and discharged November 14, 2012; there is no indication he required at least one month of convalescence. 3. The Veteran filed an increased rating claim for service-connected atherosclerotic heart disease within one year of his heart attack, in April 2013. 4. In a January 2014 rating decision, the regional office (RO) awarded an increased rating to 10 percent, effective November 13, 2012, and deferred the question of whether a temporary 100 percent evaluation could be awarded, specifically requesting that the Veteran submit evidence of his November 2012 heart attack so that such may be considered. 5. In February and August 2014, the Veteran submitted private treatment reports verifying his November 11, 2012 heart attack. 6. In a February 2015 rating decision, the RO readjudicated the Veteran’s increased rating claim based on all the evidence of record, awarding a 60 percent rating from December 11, 2014, but denying a temporary total evaluation following the Veteran’s November 12, 2012 heart attack. 7. The Veteran’s disagreement with the February 2015 decision was limited to the denial of this temporary total evaluation following his November 12, 2012 heart attack. CONCLUSION OF LAW The criteria for entitlement to a 100 percent disability rating from November 12, 2012 to February 13, 2013 are met. 38 U.S.C. §§ 5110, 7104; 38 C.F.R. §§ 3.400(o)(1)-(2), 4.104, Diagnostic Code 7006. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1984 to January 2004. The Board recognizes that the Veteran has recently perfected an appeal for the assignment of an effective date earlier than September 20, 2017 for the award of a 100 percent schedular rating for his coronary atherosclerotic heart disease. The agency of original jurisdiction (AOJ) has not yet certified the issue to the Board. As it appears the AOJ has not completed action on this appeal, the Board will not address it at this time. Temporary 100 percent rating following a November 12, 2012 heart attack The Veteran has been in receipt of a service-connection award for coronary atherosclerotic heart disease since February 1, 2004. At the time of his November 12, 2012 heart attack, his disability was rated noncompensably (zero percent) disabling under Diagnostic Code 7005. The Veteran received treatment for his heart attack, to include insertion of a stent, from November 12, 2012 to November 14, 2012, at which time he was discharged from the hospital to home. He filed a claim for increase in April 2013. The RO increased the Veteran’s rating from 0 to 10 percent, effective November 13, 2012 in a January 2014 rating decision. In that decision, the RO specifically requested that the Veteran “[p]rovide medical evidence of the heart attack in 2012 for possible entitlement to a temporary 100 percent evaluation.” Essentially, the RO deferred adjudication of that portion of the Veteran’s increased rating claim that might entitle him to a temporary total evaluation. In February 2014 and again in August 2014, the Veteran provided a response to the January 2014 rating decision, supplying copies of private treatment reports documenting the treatment he received for his November 12, 2012 heart attack, as well as follow-up treatment. The Veteran also submitted additional evidence in December 2014 of another cardiac catheterization occurring that month. In a February 2015 rating decision, the RO readjudicated the Veteran’s increased rating claim based on all evidence submitted, awarding a 60 percent rating effective December 11, 2014, and denying entitlement to a temporary 100 percent evaluation for the time period following the Veteran’s November 12, 2012 heart attack. The Veteran filed a notice of disagreement with this rating decision, but limited the disagreement (as it pertains to the heart) exclusively to the denial of the temporary 100 percent rating following his heart attack and stent placement. He did not appeal the propriety of the assigned staged ratings thereafter. As such, the only issue before the Board pertaining to the heart rating is whether a temporary 100 percent rating is warranted for the time period following the Veteran’s November 12, 2012 heart attack. Two authorities for an award of a temporary total rating are found at 38 C.F.R. § 4.29 and 38 C.F.R. § 4.30. Under 38 C.F.R. § 4.29, a total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days, or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. As the evidence demonstrates that the Veteran only required hospitalization from November 12, to November 14, 2012—less than 21 days—a temporary total rating is unavailable under the provisions of 38 C.F.R. § 4.29. Under 38 C.F.R. § 4.30, a total disability rating will be assigned when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence, surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. There is no indication in the file, and the Veteran does not allege that his surgical treatment for his heart attack required a convalescence period of at least one month, and that he suffered severe post-operative residuals warranting a temporary total rating under the provisions of 38 C.F.R. § 4.30. Indeed, when discharged, he was only instructed to limit heavy lifting for four weeks and to go on an AHA Step 1 diet. Accordingly, a temporary total rating is not warranted under either 38 C.F.R. § 4.39 or § 4.30. This does not end the inquiry however, as the unique facts of this case permit consideration of a third authority for the assignment of temporary increased rating to 100 percent—Diagnostic Code 7006, which rates myocardial infarction specifically, and allows for a 100 percent rating during and for three months following myocardial infarction, documented by laboratory tests. In this case, the Board is permitted to consider application of Diagnostic Code 7006 for the sole purposes of determining whether a temporary 100 percent rating can be assigned following the Veteran’s November 12, 2012 heart attack because this appeal stems directly from the Veteran’s April 2013 claim for an increased rating, which he filed within one year of the heart attack. As noted above, although the Veteran did not disagree with the assigned 10 and 60 percent ratings assigned by the RO in the adjudication of this increased rating claim, he did disagree with the RO’s determination that a temporary 100 percent evaluation was not warranted following his November 12, 2012 heart attack. To this extent only, the Veteran’s March 2013 increased rating claim remains on appeal. VA has a duty to maximize benefits and to consider all authorities by which the benefit sought may be granted. The Board finds that a temporary 100 percent rating—which is built into the schedular criteria under Diagnostic Code 7006—is warranted from the date of the heart attack, November 12, 2012, and for three months thereafter to February 13, 2012. Notably, but for this one provision allowing for a three-month 100 percent schedular rating following a heart attack, the rating criteria under Diagnostic Code 7006 and 7005 (under which the Veteran’s heart disability has been rated) are identical. In sum, the Board finds that although a temporary total rating under the provisions of 38 C.F.R. § 4.29 and § 4.30 is not warranted for the time period following the Veteran’s November 12, 2012 heart attack, the benefit sought can be awarded under the authority of VA’s Rating Schedule—specifically Diagnostic Code 7006, which is applicable for the reasons discussed above. Because there is evidence demonstrating that the heart attack occurred within one year of the date of claim, the temporary increase to 100 percent can be made effective the date of the heart attack for a period of three months—that is, from November 12, 2012 to February 13, 2013. The decision does not disturb the otherwise unappealed determination by the RO that a 10 percent rating is for application following the expiration of the three-month 100 percent rating now assigned, through December 11, 2014, at which point the rating was raised to 60 percent. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea disability is remanded. The Veteran contends that his sleep apnea disability began in service, or in the alternative was caused or aggravated by his service-connected cerebral vascular stroke residuals (previously evaluated as Bell’s Palsy) or his heart disease. The Veteran was diagnosed with obstructive sleep apnea in March 2014 through a private sleep study conducted by Dr. S.V. Although the Veteran’s service treatment records show no treatment for sleep apnea, the Veteran has claimed to have had obstructive sleep apnea symptoms while in service and since service. The Veteran has also submitted statements from his wife attesting to her observation that the Veteran has had sleep apnea symptoms since service, and that they became particularly bad in 2001 after the Veteran’s mini-stroke. Although a February 2015 VA medical opinion stated that it was less likely than not that the Veteran’s obstructive sleep apnea was caused by the Veteran’s service connected Bell’s palsy or coronary artery disease, the opinion did not address possible aggravation. In addition, the opinion was provided before it was medically determined that Bell’s Palsy was a misdiagnosis, and before the RO awarded service connection for the Veteran’s stroke residuals in August 2016. As a result, on remand, another medical opinion should be obtained addressing the Veteran’s contentions. 2. Entitlement to service connection for restless leg syndrome is remanded. The Veteran was diagnosed with restless leg syndrome in March 2014 through a private sleep study conducted by Dr. S.V. Although the Veteran’s service treatment records are silent on the issue of restless leg syndrome while in service, the Veteran has claimed to have had restless leg syndrome symptoms while in service and since service. The Veteran stated that he has suffered from restless leg syndrome for “many years prior to discharge and before this condition was routinely diagnosed.” The Veteran has also submitted a statement from his spouse which states that the Veteran’s restless leg syndrome and the kicking of his legs was “awful” during service. On remand, a medical opinion should be obtained addressing the etiology of the Veteran’s restless leg syndrome. The matters are REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. Obtain a medical opinion from a physician with appropriate expertise to address the etiology of the Veteran’s sleep apnea. A copy of the claims file should be sent to, and reviewed by the physician. Upon review of the file, the physician should provide a response as to each of the following: a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea had its onset during military service, or is otherwise related to military service? b.) Notwithstanding the above, is it at least as likely as not (50 percent or greater probability) that the Veteran’s obstructive sleep apnea have been caused or aggravated beyond its natural progression by the Veteran’s service-connected residuals of cerebral vascular stroke (previously evaluated as Bell’s Palsy) or any other service-connected disabilities, to include his heart disease or his psychiatric disability? In providing responses, the physician should consider the Veteran’s and his spouse’s report of symptoms of snoring and stopped breathing during times while on active duty, as well as the Veteran’s spouse’s report that his symptoms worsened after his 2001 mini-stroke. If answers to the above questions cannot be provided without examining the Veteran in person, such should be scheduled. 3. Obtain a medical opinion from a physician with appropriate expertise to address the etiology of the Veteran’s restless leg syndrome. A copy of the claims file should be sent to, and reviewed by the physician. Upon review of the file, the physician should provide a response as to each of the following: a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s restless leg syndrome had onset in, or is otherwise related to the Veteran’s period of service? b.) Notwithstanding the above, is it at least as likely as not that the Veteran’s restless leg syndrome was caused or aggravated beyond its natural progression by residuals of cerebral vascular stroke (previously evaluated as Bell’s Palsy) or any other service-connected disabilities, to include his heart disease or his psychiatric disability? In providing responses, the physician should consider the Veteran’s and his spouse’s report of symptoms during times while on active duty. If answers to the above questions cannot be provided without examining the Veteran in person, such should be scheduled. 4. Then, readjudicate the issues on appeal. If the benefits sought are denied, issue the Veteran and his representative a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David M. Sebstead, Associate Counsel