Citation Nr: 18160915 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 12-33 184 DATE: December 28, 2018 ORDER From April 26, 2017, a 100 percent rating for heart disability, including congestive heart failure (CHF), is granted, subject to the laws and regulations governing the payment of monetary awards. From March 14, 2009 to April 25, 2017, a rating in excess of 60 percent for heart disability is denied. Prior to March 14, 2009, an initial rating in excess of 10 percent for heart disability is denied. A rating in excess of 30 percent for diabetic retinopathy, from April 1, 2009, is remanded. An initial rating in excess of 20 percent for diabetic retinopathy, prior to April 1, 2009, is remanded.   FINDINGS OF FACT 1. From April 26, 2017, the Veteran’s heart disability has resulted in chronic CHF. 2. From March 14, 2009 to April 25, 2017, the Veteran’s heart disability did not result in chronic CHF; a workload of 3 METs or less; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. Prior to March 14, 2009, the Veteran’s heart disability did not result in a workload 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. CONCLUSIONS OF LAW 1. From April 26, 2017, the criteria for a 100 percent rating for heart disability, including CHF, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005. 2. From March 14, 2009 to April 25, 2017, the criteria for a rating in excess of 60 percent for heart disability were not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, DC 7005. 3. Prior to March 14, 2009, the criteria for an initial rating in excess of 10 percent for heart disability were not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, DC 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to November 1969. The case is on appeal from an October 2008 rating decision. In April 2017, the Veteran testified at a Board hearing. The claims came before the Board in September 2017 and were remanded for further development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial rating for heart disability in excess of 10 percent prior to March 14, 2009, and in excess of 60 percent from that date. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s heart disability is rated under 38 C.F.R. § 4.104, DC 7005. DC 7005 provides for a 100 percent rating for 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; a 60 percent rating for 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; a 30 percent rating for 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; and a 10 percent rating for workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. Facts The Veteran was afforded a September 2008 VA examination in which the examiner diagnosed the Veteran with CHF. He stated the Veteran had a prior myocardial infarction and his METs level was approximately 8 METs. A VA treatment record from March 2009 was submitted. The examiner noted the Veteran experiences lightheadedness related to CHF. He found the Veteran’s left carotid stenosis was less than 50 percent and a flap was found in the proximal internal region. The Veteran’s left ventricular ejection fraction was measured at 56 percent and he had akinesia of the inferior wall, which suggests coronary artery disease (CAD). The Veteran was afforded a March 2010 VA examination in which the examiner noted the Veteran’s MET capacity was estimated to be 6 METs. He reported the Veteran’s CHF was in remission at that time. A February 2011 medical examination indicated there was an echocardiogram of record which demonstrated left ventricular hypertrophy, ejection fraction of 56 percent and mild hypokinesis. The examiner indicated testing showed 6-7 METs with no significant limitations due to the heart. Thereafter, the Veteran was afforded an April 2017 Board hearing in which he asserted worsening symptoms related to his heart disability. He indicated he is severely limited by his heart condition, including experiencing difficulty climbing stairs. He noted further symptoms of chest pain and dizziness. The claim came before the Board in September 2017 and was remanded for further development, including a VA examination to determine the current severity of the disability. The Veteran was afforded a November 2017 VA examination in which the examiner indicated the Veteran has chronic CHF. Left ventricular ejection fraction was noted as 50-55 percent with hypokinesis and right ventricular hypertrophy. He reported the Veteran’s METs level was greater than 3 to 5 METs and symptoms included dyspnea, fatigue and angina. Analysis Based on the foregoing, the Board finds that an increased rating to 100 percent for the Veteran’s service-connected heart disability is warranted from April 26, 2017, the date of the Board hearing. The November 2017 VA examination report clearly establishes that the Veteran suffers from chronic CHF and therefore, a 100 percent rating is appropriate. While the VA examination report supporting the increased rating was dated in November 2017, the Board is increasing the Veteran’s rating from the date of the April 2017 Board hearing, as such is the earliest date which an increase is factually ascertainable. The Board notes an effective date for an increased rating should not be assigned mechanically based on the date of the VA examination but is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Thus, a rating of 100 percent for CHF is supported from April 26, 2017, when affording the Veteran all reasonable doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. While an increased rating to 100 percent is warranted from April 26, 2017 for the heart disability, the Board determines additional ratings are not warranted for the two prior periods. Moreover, the Veteran’s heart disability symptoms do not support a rating in excess of 10 percent prior to March 14, 2009, or a rating in excess of 60 percent from March 14, 2009 to April 25, 2017. With regard to the initial period, the September 2008 VA examiner diagnosed the Veteran with CHF, as the Veteran had a prior myocardial infarction, and found his METs level to be 8 METs. An increased rating to 60 percent was not supported until the March 2009 VA treatment record and there is no evidence suggesting a further increase to a 100 percent rating until the April 2017 Board hearing. The March 2009 VA treatment record indicated the Veteran’s left carotid stenosis was less than 50 percent and a flap was found in the proximal internal area. Further, his left ventricular ejection fraction was measured at 56 percent and he had akinesia of the inferior wall. Additionally. The March 2010 VA examiner noted the Veteran’s MET capacity was estimated to be 6 METs and the February 2011 medical opinion indicated 6-7 METs with no significant limitations due to the heart. Accordingly, the Board concludes that an increased rating to 100 percent for the Veteran’s hart disability is warranted from April 26, 2017. The Board finds the preponderance of evidence is against additional increased ratings in excess of 10 percent prior to March 14, 2009, and in excess of 60 from March 14, 2009 to April 25, 2017. There is no further doubt to be resolved, and the assignment of any additional increases than those assigned are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REMAND 2. An initial rating for diabetic retinopathy in excess of 20 percent prior to April 1, 2009, and in excess of 30 percent from that date. The rating criteria for evaluating the eyes has been amended since the Board’s remand. See 38 C.F.R. § 4.79; 83 Fed. Reg. 15316 (Apr. 10, 2018). The change is effective May 13, 2018. The issue is being remanded for the RO to evaluate the service-connected diabetic retinopathy under the new provisions in the first instance. This matter is remanded for the following action: Reevaluate the Veteran’s service-connected diabetic retinopathy with consideration of the amended rating criteria for evaluating the eyes, effective May 13, 2018. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel