Citation Nr: 18101080 Decision Date: 04/27/18 Archive Date: 04/27/18 DOCKET NO. 14-23 507 DATE: April 27, 2018 ISSUES DECIDED: 3 ISSUES REMANDED: 0 ORDER Entitlement to an initial rating for ischemic heart disease, status post coronary artery bypass graft and stenting, in excess of 30 percent from September 1, 2006 to October 2, 2006; in excess of 60 percent from October 3, 2006 to October 16, 2006; and in excess of 30 percent on and after December 1, 2006 is denied. Entitlement to an initial compensable rating for scars, status post coronary artery bypass grant and stenting, prior to October 30, 2017 is granted. Entitlement to an initial compensable rating for scars in excess of 10 percent since October 30, 2017, is denied. FINDINGS OF FACT 1. From September 1, 2006 to October 2, 2006, the Veteran’s heart disease was manifested by subjective complaints of chest pain and shortness of breath; objective findings reflect a METs level of 6.70. 2. From October 3, 2006 to October 16, 2006, the Veteran’s heart disease did not result in chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. The Veteran had a surgical procedure and was temporarily granted a 100 percent rating from October 17, 2006 until November 30, 2006. 4. From December 1, 2006 to present, the Veteran’s heart disease was manifested by shortness of breath; objective findings reflect a left ventricular ejection fraction of 60-65% and METs of 5 to 7 METs. 5. The Veteran has one painful scar that is located on his chest as a result of his coronary bypass surgery. CONCLUSIONS OF LAW 1. An initial rating for ischemic heart disease, status post coronary artery bypass graft and stenting, in excess of 30 percent from September 1, 2006 to October 3, 2006, is not warranted. 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 (DC) 7017 (2017). 2. An initial rating for ischemic heart disease, status post coronary artery bypass graft and stenting, in excess of 60 percent from October 3, 2006 to October 17, 2006, is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.100, 4.104 DC 7017 (2017). 3. An initial rating for ischemic heart disease, status post coronary artery bypass graft and stenting, in excess of 30 percent on and after December 1, 2006, is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.100, 4.104 DC 7017 (2017). 4. An initial compensable rating for scars, status post coronary artery bypass grant and stenting, prior to October 30, 2017, is warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.118, DC 7804 (2017). 5. An initial disability rating in excess of 10 percent for scars since October 30, 2017 is denied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.118, DC 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1964 to October 1968 and from September 1970 to October 1986. This matter is on appeal from a July 2011 rating decision and was previously remanded by the Board of Veterans’ Appeals (Board) in February 2016. Increased Rating for Heart Disease Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular 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 Veteran. 38 C.F.R. § 4.3. While a Veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the cardiovascular system under DC 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 DC 7017 for coronary bypass surgery. DC 7017 provides the following rating criteria: • A 30 percent rating is assigned for 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 • A 60 percent rating is assigned for 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 • A 100 percent rating is assigned 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 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. The Veteran has claimed entitlement to an initial higher rating for ischemic heart disease, status post coronary artery bypass graft and stenting. The Board notes that the Veteran underwent percutaneous coronary intervention in October 2006 and was in receipt of a temporary total (100 percent) rating for convalescence from October 17, 2006 to November 30, 2006. Thereafter, the Veteran’s ischemic heart disease was rated as 30 percent disabling from December 1, 2006 on. 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 shortness of breath. He has denied chest pain, fatigue or syncope. 1. From September 1, 2006 to October 3, 2006. The Veteran’s ischemic heart disease is rated as 30 percent from September 1, 2006 to October 3, 2006. 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 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. According to the Veteran’s medical records, a stress test conducted on May 15, 2006 showed a METs level at 6.7. The Veteran then underwent his first cardiac catheterization on May 18, 2006 and subsequently underwent coronary artery bypass grafting on May 24, 2006. Medical records show that a Cardiolite stress test was done on June 7, 2006 which showed a left ventricular ejection fraction calculated to 65 percent. 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 60 percent rating during the timeframe in question. Accordingly, the Board finds that an increased rating in excess of 30 percent from September 1, 2006 to October 3, 2006 is not warranted. 2. From October 3, 2006 to October 17, 2006. The Veteran’s ischemic heart disease is rated as 60 percent from October 3, 2006 to October 17, 2006. 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 100 percent, the evidence must show that the period in question was 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. Treatment records show the Veteran underwent a cardiac catheterization October 3, 2006 which showed an estimated left ventricular ejection fraction of 50 percent. A stent implantation was performed twice in October of 2006. A discharge summary in October 2006 noted that an echocardiogram was performed on October 14, 2006 which revealed a mild concentric left ventricular hypertrophy, ejection fraction 55 to 60 percent. 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 60 percent, which exceeds the 30 percent required under the 100 percent rating. 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 100 percent rating during the timeframe in question. Accordingly, the Board finds that an increased rating in excess of 60 percent from October 3, 2006 to October 17, 2006 is not warranted. 3. On and after December 1, 2006. The Veteran’s ischemic heart disease is rated as 30 percent disabling on and after December 1, 2006. 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. 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. In May 2010, a VA examiner estimated the Veteran’s METs level to be between 5 and 7. An echocardiogram performed on June 23, 2010 showed an ejection fraction of 55 to 65 percent. In a letter dated June 28, 2011, from the Veteran’s treating physician, Dr. C., the doctor stated that the Veteran had developed early graft closure and had multiple coronary stenting procedures. However, the doctor did not provide any objective evidence showing testing procedures which would show the ejection fraction or METs level. In December 2014, the Veteran was seen in the emergency room for complaints of chest pain. At the time, a chest x-ray and an EKG were ordered. Both the EKG and the chest x-ray came back normal and the diagnosis was acute bronchitis with pleuritic chest pain, superimposed on COPD. An echocardiogram was not performed at that time. In August 2017 an EKG was conducted with normal results. In October 2017, an echocardiogram was conducted which showed a LVEF of 60-65 percent. The interview-based METs test conducted showed dyspnea and METs levels between 5 and 7 METs. 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 60 percent rating during the timeframe in question. The Board has carefully reviewed and considered the lay statements made by the Veteran regarding the severity of his symptoms. The Board acknowledges that the Veteran is competent to attest to the presence of observable symptoms, such as shortness of breath or chest pain. 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 is not competent to opine on matters such as levels of METs or left ventricular dysfunction, as such those 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 on and after December 1, 2006 is not warranted. Entitlement to an initial compensable rating for scars, status post coronary artery bypass grant and stenting During the pendency of the appeal, the Veteran was granted a compensable rating of 10 percent for his scar, status post coronary artery bypass grant and stenting, effective October 30, 2017. The Veteran’s scar was rated as non-compensable under DC 7804, effective September 1, 2006 until October 30, 2017. DC 7804 provides that one or two painful or unstable scars warrant a 10 percent rating, three or four scars that are unstable warrant a 20 percent rating, and five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is defined as one where, for any reason, there is frequent loss of covering the skin over the scar. In his May 2010 VA examination report, the examiner reported that the Veteran had a well healed midline anterior Thoracotomy scar as a result of his bypass surgery in 2006. The examiner did not evaluate whether or not the scar was tender or painful. In October 2017, the Veteran was provided a VA examination to evaluate the current level of severity for his scars, status post coronary artery bypass grant and stenting. The examiner noted that the Veteran had one linear chest scar that was painful with a measurement of 10 cm. In assessing the severity of the Veteran’s scar, the Board has considered the Veteran’s own assertions, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Since the scar which the Veteran suffers from originated in 2006 following his bypass surgery, and there is no medical evidence in the record which contradicts the Veteran’s account that his scar is painful, the Board finds that the evidence is at least in equipoise. As such, the benefit of the doubt must be afforded to the Veteran. The Board finds that a 10 percent rating for the entirety of the period on appeal under DC 7804 based on a superficial, painful chest scar, is warranted. (Continued on next page) Since the Veteran has only one scar which is painful, under current VA rating guidelines, he is receiving the maximum benefit for this disability. As such, the maximum benefit has been granted. Accordingly, over the course of the entire appeal period, a disability rating in excess of 10 percent for the Veteran’s scars is not warranted. Evan M. Deichert Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.L. Bernal