Citation Nr: 1806995 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-04 871 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for ischemic heart disease, status post 2-vessel coronary artery bypass grafting (CABG),for the period prior to December 2, 2012, and in excess of 30 percent thereafter. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected ischemic heart disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Melissa Barbee, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1967 to April 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2012 and July 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2015, the Veteran testified before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In October 2017, VA notified the Veteran that he was entitled to another hearing in light of the fact that the VLJ who had conducted his hearing was no longer employed by the Board. See 38 U.S.C. § 7107(c). As the Veteran did not respond within 30 days of the notification, it is presumed that he did not want another hearing. This case was previously before the Board in September 2015, at which time it was remanded for additional development. The Board notes that this appeal originally included the additional issue of whether a rating reduction from 10 percent to 0 percent for residuals of a right little finger fracture was proper. This issue was also remanded by the Board in September 2015. While in remand status, the RO determined, in a September 2016 rating decision, that a clear and unmistakable error had been made in reducing the rating, and the 10 percent rating was restored as if no reduction had taken place. As that decision constitutes a complete grant of benefits sought on appeal, and the Veteran has not filed a notice of disagreement with either the assigned rating or effective date, this issue is no longer before the Board. FINDINGS OF FACT 1. From March 1, 2012 to December 2, 2012, the Veteran's ischemic heart disease did not result in a workload of greater than 5 METs, but not greater than 7 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. 2. From December 3, 2012 to April 20, 2014, the Veteran's ischemic heart disease did not result in more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs, but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 3. As of April 21, 2014, the Veteran's ischemic heart disease has resulted in left ventricular dysfunction with an ejection fraction of 30 to 50 percent; however, it did not result in chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 4. The Veteran's sleep apnea did not manifest during or as a result of his active duty service, and is not caused or aggravated by his service-connected ischemic heart disease. CONCLUSIONS OF LAW 1. The criteria for an initial increased rating in excess of 10 percent for ischemic heart disease, from March 1, 2012 to December 2, 2012, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7017 (2017). 2. The criteria for an initial increased rating in excess of 30 percent for ischemic heart disease, from December 3, 2012 to April 20, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7017 (2017). 3. Since April 21, 2014, the criteria for an initial increased rating of 60 percent, but not higher, for ischemic heart disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7017 (2017). 4. The criteria for service connection for sleep apnea, to include as secondary to service-connected ischemic heart disease, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. As neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). II. Initial Higher Rating for Ischemic Heart Disease Legal Criteria Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries incurred as a result of, or incident to, military service. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating disabilities of the cardiovascular system under Diagnostic Codes 7000-7007, 7011, and 7015-7020, it must be ascertained in all cases 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. 38 C.F.R. § 4.100. METs testing is also required in all cases except: (1) when there is a medical contraindication; (2) when the left ventricular ejection fraction has been measured and is 50 percent or less; (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; (4) when a 100 percent evaluation can be assigned on another basis. Id. If left ventricular ejection fraction (LVEF) testing is not of record, the cardiovascular disability must be based on the 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 cardiovascular disability. Id. 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. The Veteran is currently rated under Diagnostic Code 7017 for coronary bypass surgery. Diagnostic Code 7017 provides the following rating criteria: A 10 percent rating is assigned where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, syncope; or continuous medication is required. 38 C.F.R. § 4.104, Diagnostic Codes 7017. A 30 percent rating is assigned where a 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. Id. A 60 percent rating is assigned where there is more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted for three months following hospital admission for coronary bypass surgery; thereafter, for chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Factual Background and Analysis The Veteran has claimed entitlement to an initial higher rating for ischemic heart disease, status post 2-vessel CABG. The Board notes that the Veteran underwent coronary bypass surgery in November 2011 and was in receipt of a temporary total (100 percent) rating for convalescence from November 28, 2011 to February 29, 2012. Thereafter, the Veteran's ischemic heart disease was rated as 10 percent disabling from March 1, 2012 to December 2, 2012, and as 30 percent disabling on and after December 3, 2012. The Veteran contends that he is entitled to a higher rating for his service-connected ischemic heart disease because, since his heart surgery, his ability to perform daily tasks are limited due to fatigue, shortness of breath, and lack of energy. He has stated that he is unable to do yard work and has difficulty walking even short distances, as well as up and down stairs. He reports labored breathing and perspiring profusely at rest, as well as minor chest pains and severe headaches. The Veteran has alleged that he initially felt "quite a bit better and resumed normal activities" following his surgery, but that beginning in "roughly September or October 2012" his symptoms have continuously worsened. 1. From March 1, 2012 to December 2, 2012 The Veteran's ischemic heart disease is rated 10 percent disabling from March 1, 2012 to December 2, 2012. For the reasons stated below, the Board finds that the preponderance of the evidence is against assigning a higher initial rating for this time period. To qualify for a higher rating of 30 percent, the evidence must show that the Veteran had a workload of 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. At an April 2012 VA primary care follow up, the Veteran reported that he was doing well after his coronary bypass surgery and had been exercising. He reported no chest pain and no palpitations. His coronary artery disease was deemed to be asymptomatic. His heart medications were continued. In November 2012, the Veteran was afforded a VA Compensation and Pension examination for his heart, pursuant to his claim for service connection. The examiner noted that the Veteran took continuous medications for ischemic heart disease. He did not have congestive heart failure. There was no evidence of cardiac hypertrophy or dilatation. An interview-based METs test was performed, and the examiner felt that the Veteran could perform greater than 7 to 10 METs before experiencing dyspnea and fatigue. Based on the medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's overall disability picture more nearly approximated the level of severity contemplated by a 30 percent rating during the timeframe in question. The record does not show that a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope. Furthermore, there is no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. As such, the Veteran does not qualify for an initial rating in excess of 10 percent for the period from March 1, 2012 to December 2, 2012. 2. From December 3, 2012 to April 20, 2014 The Veteran is currently in receipt of a 30 percent disability rating for ischemic heart disease, effective December 3, 2012. Initially, the Board notes that the medical and lay evidence of record indicates a change in severity of the Veteran's symptoms from December 3, 2012 to the present. Accordingly, the Board has assigned separate ratings for the distinct periods of time where different ratable symptoms have been identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). For the reasons stated below, the Board finds that the preponderance of the evidence weighs against assigning a rating in excess of 30 percent from December 3, 2012 to April 20, 2014. To qualify for a higher rating of 60 percent, the evidence must show that the Veteran had more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The Veteran presented to the VA cardiology clinic in December 2012 after experiencing increased fatigue, dyspnea on exertion, intense diaphoresis, and mild chest pain. An echocardiogram was performed, which showed mild left atrial dilatation. There was borderline concentric left ventricular hypertrophy. The estimated left ventricular ejection fraction was 55 to 59 percent. In a February 2013 letter, the Veteran's wife detailed the Veteran's ongoing symptoms of ischemic heart disease. She reported that he "continues to be short of breath and demonstrates labored breathing after normal activities and during sleep." She further stated that "he is labored at rest on a daily basis suggesting that his METs are high at rest." In his January 2014 substantive appeal (VA Form 9), the Veteran stated that his "pulmonary function has decreased due to decreased chest expansion after cardiothoracic surgery." He further stated that his ability to perform daily tasks is now limited due to fatigue, breathlessness, and lack of energy. Based on the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran's overall disability picture more nearly approximated the level of severity contemplated by a 60 percent rating during the timeframe in question. The Board notes that there is no METs testing found in the record during this timeframe. However, the Veteran's estimated left ventricular ejection fraction was 55 to 59 percent, which exceeds the 30 to 50 percent required under the 60 percent rating. The Board has carefully reviewed and considered the lay statements made by the Veteran and his wife regarding the severity of his symptoms. The Board acknowledges that the Veteran sincerely believes that the disability on appeal has been more severe than the assigned disability rating reflects. The Board notes that the Veteran is competent to testify to the presence of observable symptoms, such as shortness of breath or fatigue at certain levels of exertion, and his wife is competent to report on factual matters of which she has firsthand knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, here, the rating criteria is dependent upon complex medical findings, and the Veteran and his wife are not competent to opine on matters such as levels of METs or left ventricular dysfunction, as such findings are not within the realm of lay observation or knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Board must rely on the medical evidence of record to assign a higher rating. Accordingly, the Board finds that an increased rating in excess of 30 percent for the period from December 3, 2012 to April 20, 2014 is not warranted. 3. From April 21, 2014 After a thorough review of the lay and medical evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that his service-connected ischemic heart disease more nearly approximated the criteria for an increased 60 percent rating, but not higher, from April 21, 2014. As noted above, to qualify for a higher rating of 60 percent, the evidence must show that the Veteran had more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The Veteran was admitted to the VA medical center in April 2014 for recurrent chest pain with radiating pain in his left arm. An echocardiogram performed on April 21, 2014 revealed the left atrium to be mildly to moderately dilated. The left ventricular systolic function was mildly reduced, with an estimated left ventricular ejection fraction of 45 to 49 percent. The Veteran underwent another VA Compensation and Pension heart examination in August 2016. The examiner noted that the Veteran took continuous medications for ischemic heart disease. He did not have congestive heart failure. There was no evidence of cardiac hypertrophy or dilatation. An interview-based METs test was performed, and the examiner felt that the Veteran could perform greater than 7 to 10 METs before experiencing dyspnea. The examiner opined that there was no current objective evidence of active ischemia, as the Veteran's "grafts are patent and the most recent [ejection fraction estimate from April 2014] is normal." The examiner further opined that additional testing for compensation purposes was medically inappropriate as it could be potentially harmful to the Veteran. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a 60 percent rating from April 21, 2014 is warranted, as the medical evidence shows that he had left ventricular dysfunction with an ejection fraction of 30 to 50 percent on that date. The Board has considered the next higher disability rating of 100 percent. However, the evidence of record does not show chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent, at any time since April 21, 2014. Accordingly, the Board finds that a rating of 60 percent, but not higher, for ischemic heart disease from April 21, 2014 is warranted. III. Service Connection for Sleep Apnea Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires medical evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53. Factual Background and Analysis The Veteran seeks service connection for sleep apnea, to include as secondary to his service-connected ischemic heart disease. He contends that his sleep apnea began shortly after his coronary bypass surgery in November 2011. The Veteran has stated that he never had any breathing problems or a need for oxygen while sleeping until after his surgery. As an initial matter, the Veteran's service treatment records are silent as to any complaints of, treatment for, or diagnosis of sleep apnea or any other sleeping problems in service. Further, the Veteran has not presented any medical evidence that his sleep apnea was directly related to his service. Moreover, the Veteran does not contend that his sleep apnea began while in service nor has he asserted that it was caused by an in-service event. In fact, he has specifically asserted that his sleep apnea began in after his coronary bypass surgery in November 2011 and is secondary to his service connected ischemic heart disease. Therefore, service connection on a direct basis is not warranted. VA treatment records reveal that the Veteran underwent an overnight oximetry study in October 2013. The findings were consistent with a diagnosis of sleep apnea and the Veteran was prescribed nocturnal oxygen. A sleep study conducted in June 2014 confirmed the diagnosis of obstructive sleep apnea and the Veteran began using a CPAP machine for sleep. In September 2016, a VA examiner provided a medical opinion as to the nature and etiology of the Veteran's sleep apnea. After a thorough review of the Veteran's claims file and the relevant medical literature, the examiner determined that the Veteran's sleep apnea is less likely than not (less than 50 percent) proximately due to or the result of his service-connected ischemic heart disease. The examiner explained that the cause of sleep apnea is the relaxation of the muscles in the back of the throat, which causes the upper airway to collapse and results in inadequate breathing during sleep. He opined that ischemic heart disease is not a known cause or risk factor for sleep apnea, but that the Veteran did have other known risk factors, such as advancing age, male gender, and obesity. The examiner further opined that the Veteran's sleep apnea is less likely than not (less than 50 percent) aggravated beyond its normal progression by his service-connected ischemic heart disease. The examiner rationalized that a review of the medical records do not show any abnormalities or complications related to sleep apnea beyond what would normally be expected, and that the condition is currently stabilized by CPAP treatment; therefore, no aggravation has been demonstrated. When considering the probative value of medical opinion evidence, the Board considers factors such as the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Given the foregoing, the Board has assigned great probative weight to the medical opinion expressed by the September 2016 VA examiner. Moreover, neither the Veteran nor his representative has presented or identified any contrary medical opinion that supports the claim for service connection. The Board notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). The Veteran has asserted, in his hearing testimony and correspondence to VA and in statements to his physicians, that he believes his sleep apnea is caused by his ischemic heart disease. He contends that his breathing problems did not begin until after his coronary bypass surgery in November 2011, and that his sleep apnea is caused by his decreased lung function resulting from his surgery. In this case, the Board notes that pulmonary function tests conducted by VA in April 2013 did in fact reveal that the Veteran has decreased lung volume due to decreased chest expansion after his cardiothoracic surgery. However, there is no medical evidence of record that provides a nexus between the Veteran's sleep apnea and his decreased lung volume caused by heart surgery. Further, the Board acknowledges that the Veteran is competent to report on matters observed or within his personal knowledge, such as his symptoms or medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the nature and etiology of his condition is a complex medical question that is not within the competency of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board considers the medical opinion of the VA examiner to be more probative than the lay opinion of the Veteran in regard to causation. For the foregoing reasons, the Board finds that a preponderance of the evidence weighs against the Veteran's claim for service connection for sleep apnea, on both a direct and secondary basis. Because the evidence fails to establish that the disability was incurred in or caused by service or is proximately due to or aggravated by a service-connected disability, the Veteran's claim does not satisfy the criteria for service connection. As such, the benefit-of-the-doubt rule does not apply, and the claim for sleep apnea must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An increased rating in excess of 10 percent for ischemic heart disease, from March 1, 2012 to December 2, 2012, is denied. An increased rating in excess of 30 percent for ischemic heart disease, from December 3, 2012 to April 20, 2014, is denied. An increased rating of 60 percent, but not higher, for ischemic heart disease since April 21, 2014 is granted. Entitlement to service connection for sleep apnea, to include as secondary to service-connected ischemic heart disease, is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs