Citation Nr: 1808941 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 13-23 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 10 percent as of May 1, 2008, for coronary artery disease status post myocardial infarction (CAD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. Additionally, in July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In December 2015, the Board remanded the case for additional development and it now returns for further appellate review. The Board observes that, following the issuance of the October 2016 supplemental statement of the case, additional VA treatment records dated from December 2007 through June 2017 were associated with the record. While the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such records, the Board finds that they contain duplicative information of that previously of record and considered by the AOJ. 38 C.F.R. § 20.1304(c) (2017). Additionally, the Veteran submitted relevant private treatment records in September 2017. As his substantive appeal was received in July 2013 and AOJ consideration of this evidence has not been explicitly requested, a waiver of AOJ consideration is not necessary. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, section 501. Therefore, the Board finds no prejudice to the Veteran in proceeding with a decision in regard to his initial rating claim herein. In his September 2017 Written Brief Presentation, the Veteran's representative argued that the Veteran developed nicotine dependence while in service as a result of cigarette smoking. For claims filed after June 9, 1998, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C. § 1103(a). Furthermore, the Board notes that, effective March 24, 2015, a claim for benefits must be submitted on an application form prescribed by the Secretary. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014) (Dates). Therefore, if the Veteran wishes for any future claim on any matter to be considered, he and/or his representative must file the appropriate application(s) with the AOJ. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. In a September 2017 claim, the Veteran raised the issue of entitlement to a temporary total rating based on surgery necessitating convalescence for his service-connected CAD. However, such claim has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. As the most probative evidence reflects that, as the Veteran's limitation in METs (metabolic equivalent) level included consideration of conditions other than his CAD, such measurement is not reliable as to the severity of his service-connected CAD at any point pertinent to the appeal period. 2. From May 1, 2008, to January 23, 2015, the Veteran's CAD was manifested by a left ventricular ejection fraction of no less than 63 percent, without evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, or congestive heart failure (CHF). 3. Since January 23, 2015, the Veteran's CAD was manifested by evidence of cardiac hypertrophy and dilatation on an echocardiogram, with an ejection fraction of no less than 60 percent, without evidence of CHF. CONCLUSIONS OF LAW 1. From May 1, 2008, to January 23, 2015, the criteria for an initial rating in excess of 10 percent for CAD were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7006 (2017). 2. Since January 23, 2015, but no earlier, the criteria for an initial 30 percent rating, but no higher, for CAD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, DC 7006 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters 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); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Neither the Veteran nor his representative have alleged any deficiency with respect to VA's duties to notify or assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Analysis The Veteran contends that his service-connected CAD is more severe than is reflected by his current disability rating due to his symptoms of shortness of breath and chest pain. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See id. at 126. The Veteran's service-connected CAD is currently evaluated as 10 percent disabling pursuant to DC 7006. Under DC 7006, a rating of 10 percent is assigned when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where continuous medication is required. A 30 percent rating contemplates a workload of greater than 5 METs but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there is 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 100 percent rating is warranted where there is 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. In this regard, one MET 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 requires for evaluation, 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. METs Level As an initial matter, the Board finds that the Veteran's METs levels recorded throughout the appeal period are not reliable as to the severity of his service-connected CAD. In this regard, the June 2010 VA examination revealed a METS level of 6.4, but found that the Veteran was asymptomatic relative to his heart condition. Further, in a September 2013 private DBQ, Dr. D.A. listed lumbar disk disease as a non-cardiac medical condition that limited the METs level. However, he concluded that 90 percent of the METs level limitation is due solely to the Veteran's heart condition. He also concluded that the limitation in METs level was due to multiple factors and it was not possible to accurately estimate this percentage. At a January 2015 VA examination, the examiner estimated a workload level of 1 to 3 METs, resulting in dyspnea, based on an interview of the Veteran. Here, the examiner indicated that the Veteran's estimated METs level was not solely due to his heart disorder. The examiner further indicated that the Veteran's limitation in METs level was due to multiple medical disorders, including his heart disorder, and it was not possible to accurately estimate the percentage of METs limitation attributable to each medical disorder. In this regard, she indicated that the Veteran had a spinal cord condition and chronic obstructive pulmonary disease (COPD), but was unable to estimate the effect of such nonservice-connected disabilities on his METs level. The examiner further concluded that the Veteran's METs limitations were attributable to non-cardiac conditions and that the most accurate assessment of cardiac function was the ejection fraction. However, as neither Dr. D.A. nor the January 2015 VA examiner offered a rationale for their opinions as to why it was not possible to accurately estimate the percentage of METs limitations attributable to each medical disorder, such are entitled to little probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Consequently, the Board remanded the matter in December 2015, in part, in order to obtain an opinion as to the METs limitations attributable solely to the Veteran's CAD with a rationale for such determination. Thereafter, at a March 2016 VA examination, the examiner estimated a workload level greater than 1 METs but not greater than 3 METs based on an interview of the Veteran. Here, the examiner indicated that his limitation in METs level was due to multiple medical disorders, including his heart disorder. As rationale, the examiner opined that the Veteran got winded with activities such as brisk walking and he had a bilateral knee disorder as well as a history of 45 years of tobacco use. In a May 2016 addendum opinion, the VA examiner indicated that an exercise stress test was not performed due to the Veteran's chronic back pain and bilateral knee disorder. The examiner concluded that the Veteran's estimated METs level was confounded by his other comorbid medical disorders. Specifically, he stated that the Veteran's bilateral knee disorder and the shortness of breath impacted his ability to sustain and endure activities. Moreover, the impact of the Veteran's bilateral knee disorder and shortness of breath contributed to an estimated 40 percent of the METs level. The Board accords great probative weight to May 2016 VA opinion as it considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Consequently, as the most probative evidence reflects that, as the Veteran's limitation in METs level included consideration of conditions other than his CAD, such measurement is not reliable as to the severity of his service-connected CAD. Therefore, in the adjudication of the Veteran's initial rating claim, the Board will not consider his METs levels. May 1, 2008, to January 23, 2015 The Board finds that, from May 1, 2008, to January 23, 2015, an initial rating in excess of 10 percent for the Veteran's CAD is not warranted as such resulted in a left ventricular ejection fraction of no less than 63 percent, without evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, or CHF. In this regard, a July 2008 VA treatment record noted that the Veteran suffered from a heart attack in January 2008 and was given a pacemaker implant. He was placed on medication, which was effective. The Veteran denied chest pain, flutters, palpitations, dyspnea, wheezing, and dyspnea on exertion. Subsequently, in February 2009, he reported that he worked out daily and increased the intensity. The Veteran continued to deny the above symptoms and the record indicates that his CAD was controlled with medications. Additionally, a February 2009 VA examination report notes that the Veteran had a normal size heart and denied chest pain, shortness of breath, dizziness, syncope, and swelling of the lower extremities or palpation. A June 2010 VA examination report showed a diagnosis of coronary artery disease with no evidence of congestive heart failure. The Veteran reported that he worked out for 45 minutes several times a week without problems, but experienced transient dizziness if he stood too long. However, the examiner noted that there was no history of angina, syncope, fatigue or dyspnea. The examiner also noted that his last myocardial perfusion imaging (MPI) was in September 2008 and he had a left ventricular ejection fraction of 63 percent. Moreover, he noted a July 2010 echocardiogram report that showed a left ventricular ejection fraction of 72 percent and the Veteran had an ejection fraction of 75 percent after a nuclear stress test. The examiner concluded that the Veteran was currently asymptomatic relative to his heart condition and his echocardiogram report documented a normal heart size and function with an ejection fraction of 72 percent. Moreover, his nuclear stress test showed no evidence current or prior ischemia/infarction. With regard to the Veteran's employability, the examiner found that the Veteran's CAD did not impact his ability to work. In this regard, the examiner noted that the Veteran was employed and he was not limited from working based on his cardiac disability. Subsequent treatment records revealed that the Veteran's CAD remained stable with medication and he continued to deny chest pain, dyspnea, or any other issues. See April 2011, August 2011, June 2012, and December 2012 VA treatment records. A September 2013 private DBQ report from his cardiologist, Dr. D.A., notes a July 2010 left ventricular ejection fraction of 67 percent. Dr. D.A. did not indicate that the Veteran had congestive heart failure or provide evidence of cardiac hypertrophy or dilation. Moreover, the DBQ was silent for any additional cardiac symptomatology. Furthermore, Dr. D.A. stated that the Veteran was felt to be completely and permanently disabled. However, he provided no rationale for such opinion. Therefore, it is afforded no probative weight. See Nieves-Rodriguez, supra; Stefl, supra. Upon consideration of the evidence of record and the relevant laws and regulations, the Board finds that an initial rating in excess of 10 percent for the Veteran's heart disability is not warranted. In this regard, the June 2010 examination report showed no evidence of cardiac hypertrophy or dilatation, or CHF. Additionally, the Veteran's left ventricular ejection fraction was, at worst, 63 percent as noted in the June 2010 VA examination. Since January 23, 2015 The Board finds that, since January 23, 2015, but no earlier, a 30 percent rating, but no higher, is warranted for the Veteran's CAD as such was manifested by cardiac hypertrophy and dilatation on an echocardiogram. However, an initial rating in excess of 30 percent is not warranted as his ejection fraction was no worse than 60 percent, and there is no evidence of CHF. In this regard, the Veteran was afforded a VA examination to determine the severity of his CAD on January 23, 2015. At that time, he reported experiencing dyspnea on exertion after about 1/4 miles. The Veteran did not have CHF, a heart valve disorder, an infectious cardiac disorder, or pericardial adhesions, but it was noted that he had arrhythmia. Testing results reflected evidence of cardiac hypertrophy and dilatation. He had a left ventricular ejection fraction of 65 percent, which the examiner considered the most accurate assessment of cardiac function for rating purposes. With regard to the impact that the Veteran's CAD had on his ability to work, the examiner stated that the Veteran's heart conditions impacted any moderate to heavy exertion. During the July 2015 Board hearing, the Veteran reported that his heart disability resulted in shortness of breath, a pounding heart during activity, chest tightness, and numbness in the upper extremities. Therefore, the Board remanded the matter in December 2015 to afford the Veteran a new VA examination so as to determine the severity of the Veteran's heart condition. Such examination was conducted in March 2016, at which time the examiner interviewed the Veteran, reviewed the complete record, and conducted a full examination. In this regard, the examiner noted that the Veteran reported shortness of breath and occasional chest pain. The VA examiner also noted that the Veteran used tobacco for 45 years and continued to drink every day. The Veteran did not have CHF, a heart valve disorder, an infectious cardiac disorder, or pericardial adhesions. The examiner reported that the Veteran had a concentric left ventricular hypertrophy with a normal left ventricular ejection fraction of 65 percent, per the echocardiogram report dated January 2015. She also reported that there was no evidence of an enlarged heart. With regard to the impact that the Veteran's CAD had on his ability to work, the examiner further noted that the Veteran would be able to work based solely on his CAD cardiac disorder in a sedentary activity capacity. Furthermore, an August 2017 private treatment record revealed a normal ejection fraction of 60 percent in May 2017. Upon consideration of the evidence of record and the relevant laws and regulations, the Board finds that, since January 23, 2015, but no earlier, an initial 30 percent rating, but no higher, is warranted for the Veteran's CAD in light of evidence of cardiac hypertrophy and dilatation on an echocardiogram. However, an initial rating in excess of 30 percent is not warranted as his ejection fraction was no worse than 60 percent, and there is no evidence of CHF. Other Considerations In making its determination in this case, the Board acknowledges the Veteran's and his representatives' belief that his heart symptoms are more severe than the current disability rating reflects. While the Board recognizes that the Veteran and his representatives are competent to provide statements regarding his observable symptomatology, they are not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria, or render a medical determination as to which of the Veteran's conditions contribute to his METs limitations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his and his representatives' own reports regarding the severity of such condition. The Board has considered whether assigning further staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected CAD; however, the Board finds that the Veteran's symptoms referable to such disability have been stable throughout each period on appeal. Therefore, assigning further staged ratings for his CAD is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In adjudicating the Veteran's initial rating claim herein, the Board has resolved all doubt in his favor, which has resulted in a partial award of an a higher initial rating for his CAD as of January 23, 2015. However, to the extent that further higher ratings are denied herein, the Board finds that the preponderance of the evidence is against such ratings. Consequently, the benefit of the doubt doctrine is not applicable in such regard, and the Veteran's claim for higher initial ratings is otherwise denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER From May 1, 2008, to January 23, 2015, an initial in excess of 10 percent for CAD is denied. As of January 23, 2015, but no earlier, an initial 30 percent rating, but no higher, for CAD is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs