Citation Nr: 18157830 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-49 258 DATE: December 13, 2018 ORDER Entitlement to an initial compensable rating for aortic aneurysm is denied. FINDING OF FACT The 60 percent rating assigned for the Veteran’s aortic aneurysm fully compensates him for his complaints of dyspnea (shortness of breath), fatigue, angina (chest pain), and dizziness; and, the assignment of a separate rating for those symptoms for his valvular heart disorder would be pyramiding and there are no separately identifiable symptoms. CONCLUSION OF LAW The criteria for an initial compensable disability rating for aortic aneurysm have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 3.102, 4.1-4.14, 4.21, 4.31, 4.104, Diagnostic Code 7110 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1994 to November 2010. For purpose of clarity, the Veteran filed a non-initial claim for increased rating that was received by VA in May 2014 1. Entitlement to an initial compensable rating for aortic aneurysm The Veteran’s aortic aneurysm disability is in receipt of a noncompensable rating under DC 7110. The Veteran argues that this disability rating does not adequately reflect the symptomology of his disability. The Veteran has also been granted service connection for valvular heart disease, status post heart valve replacement with a 60 percent rating under DC 7016. The rating assigned under DC 7016 adequately reflects the symptoms of his heart condition, and evaluation of ratings for the same disability under various diagnoses is prohibited. See 38 C.F.R. § 4.14, 4.104, DC 7016, 7110 (2018). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate Diagnostic Codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although a disability must be considered in the context of the whole recorded history, including service treatment records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If a disability has undergone varying and distinct levels of severity throughout the claims period, staged ratings may be assigned. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). Under DC 7110, a 60 percent rating is warranted if the aortic aneurysm precludes exertion. A 100 percent rating is warranted if the aortic aneurysm is five centimeters or larger in diameter, or is symptomatic, or for an indefinite period from the date of hospital admission for surgical correction. 38 C.F.R. § 4.104, DC 7110. Although DC 7110 does not provide for a zero percent rating, a noncompensable evaluation is assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2018). The Board notes that following surgical correction of an aortic aneurysm, the residual symptoms are evaluated according to the organ systems affected. 38 C.F.R. § 4.104, DC 7016, 7110. Under DC 7016, heart valve replacement, a 60 percent rating is warranted when a Veteran experiences more than one episode of acute congestive heart failure in a one-year period on appeal, when a workload of greater than 3 METs but not greater than 5 METs causes dyspnea, fatigue, angina, dizziness, or syncope, or when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7016. On private Disability Benefits Questionnaire (DBQ) in September 2014, the Veteran reported his current symptoms as chest pain. Dr. T.C. noted the Veteran’s aortic aneurysm to be symptomatic, but not 5 centimeters (cm) or larger in diameter and did not preclude exercise. Dr. T.C. did not indicate any other significant findings and did not address any physical limitations that the Veteran’s aortic aneurysm caused. On VA examination in March 2015, the Veteran stated that about a year and a half prior to the examination, he started noticing chest tightness (angina) and shortness of breath (dyspnea) when he climbed stairs. The examiner indicated the Veteran did not have an aortic aneurysm at the time of examination. The examination report did not indicate further significant findings related to the Veteran’s aortic aneurysm. In September 2018, VA received a corrected DBQ from Dr. T.C. dated in October 2016. This report indicated the Veteran reported symptoms of dizziness, fatigue, and light-headedness with exertion. Dr. T.C. remarked that the Veteran’s aortic aneurysm was 5 centimeters or larger in diameter, symptomatic, and precluded exertion. In an October DBQ for heart conditions completed by Dr. T.C., the Veteran had mild cardiac hypertrophy, with evidence of cardiac dilation, requiring continuous medication. The Veteran’s left ventricle ejection fraction (LVEF) was 55 percent. The Veteran did not have congestive heart failure, and a stress test was not completed. The submitted documents from October 2016 also included a letter from Dr. T.C., stating that the Veteran has symptoms of dizziness, fatigue, and lightheadedness with exertion or strenuous activities, attributable to the surgical wrap that was placed over the aortic aneurysm that was 5.5 cm, according to the March 2008 surgery report. Dr. T.C. offered this letter as a correction from his September 2014 report, which overlooked the limitations on exertion, and explained that the Veteran cannot perform moderately strenuous activities such as lifting weights or running. Dr. T.C. has stated the Veteran’s symptoms preclude exertion, as specified in DC 7110 for a 60 percent rating. However, the actual symptoms he experiences, such as dizziness, angina (chest tightness) and fatigue that cause inability to exercise are contemplated in the rating criteria under DC 7016, for which the Veteran is already compensated at 60 percent. Assigning more than one rating for overlapping or duplicative symptomatology is prohibited under 38 C.F.R. § 4.14. The Veteran is receiving a 60 percent rating for his symptoms under DC 7016, which is appropriate following surgical correction of aortic aneurysm. See 38 C.F.R. § 4.104, DC 7016, 7110. The Board considered whether the Veteran’s symptoms warrant a higher rating under DC 7110. Because the Veteran’s symptom of precluded exertion would align with a 60 percent rating, which is the same as he is currently receiving under DC 7016, a reassignment under DC 7710 is not appropriate. The evidence of record supports that the Veteran’s heart condition is adequately compensated by the assigned disability rating. The Veteran has been granted the highest available rating under the appropriate diagnostic code. A higher rating under DC 7110 is appropriate only for aortic aneurysm that has not yet been surgically corrected, or for 6 months following surgical correction. Under DC 7016, a higher rating of 100 percent is warranted for chronic congestive heart failure, when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. As the Veteran has had corrective surgery, and does not have congestive heart failure or LVEF less than 30 percent, a higher rating is not appropriate. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.E. Lee, Associate Counsel