Citation Nr: 20011982 Decision Date: 02/13/20 Archive Date: 02/12/20 DOCKET NO. 19-17 103 DATE: February 13, 2020 ORDER Entitlement to an earlier effective date prior to August 23, 2018 for an increased disability rating for coronary artery disease (CAD) is denied. FINDINGS OF FACT 1. The first instance where the Veteran showed symptoms severe enough to entitle him to a 100 percent disability rating for his service-connected CAD disability was during his November 2018 VA examination. 2. The Veteran filed an Intent to File a Claim for Compensation on August 23, 2018 and the record contains no other statement, communication, or other document from the Veteran prior to August 23, 2018 that can be construed as a claim for increased rating for his service-connected CAD; there is no objective medical evidence showing worsening of the Veteran’s CAD disability within the one-year period prior to the Veteran’s intent to file. CONCLUSION OF LAW The criteria for an effective date prior to August 23, 2018 for an increased disability rating for CAD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400(o), 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Air Force from May 1965 to December 1969 and is a veteran of the Vietnam Era. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). In that rating decision, the RO granted the Veteran an increase in his compensation rating for service-connected CAD to 100 percent, which is the maximum rating allowed by law. The increase was effective August 23, 2018, the date on which the Veteran filed a notice of intent to file a claim for compensation. The Veteran asserts that he is entitled to an effective date of April 17, 2015. 1. Entitlement to an earlier effective date prior to August 23, 2018 for an increased disability rating for coronary artery disease (CAD) The effective date of an award of increased compensation may be granted for one of three dates. First, if the increase in disability occurs after the claim is filed the date of award shall be the date on which the increase is shown to have occurred (date entitlement arose). 38 C.F.R. § § 3.400(o)(1). Second, if the increase in disability precedes the claim by a year or less the award date shall be the date on which the increase is shown to have occurred (when it is factually ascertainable). 38 C.F.R. § § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511, 517 (1997). Finally, the date of award shall be the date the claim is filed if the increase in disability precedes the claim by more than a year (date of claim). 38 C.F.R. § § 3.400(o)(2); See, Gaston v. Shinseki, 603 F.3d 979, 984 (Fed. Cir. 2010) (holding that 38 U.S.C. § 5110(b)(2) and its implementing regulation “require[] that an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.”); see also, Harper v. Brown, 10 Vet. App. 125, 126 (1997). It should be noted that the date for which a disability increase is awarded additional compensation will occur “only where it has been determined that the evidence warrants an increase to the next disability level.” Hazan, 10 Vet. App. at 519 (Section 5110(b)(2) is invoked only where it has been determined that the evidence warrants an increase to the next disability level; because an increase to the next disability level is required to invoke subsection (b)(2), “an increase” is most logically construed in that context to mean an increase to the next disability level.). The Veteran has received his CAD disability rating under Diagnostic Code 7005, which provides ratings for arteriosclerotic heart disease (CAD). Under this Diagnostic Code, a 100 percent disability rating requires a showing of arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 metabolic equivalents (METs) or less which results of dyspnea (shortness of breath), fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. Left ventricular ejection fraction (LVEF) is the measurement of how much blood is being pumped out of the left ventricle of the heart, the main pumping chamber, with each contraction. For rating diseases of the heart, 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 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. When did the Veteran file his claim for an increased rating for CAD? The Board first addresses the questions of when the Veteran filed his claim for an increased rating for his CAD disability. The Veteran asserts that he filed his claim for an increased rating for his CAD on April 7, 2015, earlier than the August 23, 2018 notice of intent to file a claim. See letter for Veteran dated June 6, 2019. The relevant procedural history prior to August 23, 2018 follows. Based on this review, the Board finds that no claim for an increased rating for CAD was submitted prior to August 23, 2018. In an April 16, 2015 letter, the VA acknowledged receipt of the Veteran’s April 15, 2015 notice of intent to file a claim. Thereafter, on April 17, 2015, the VA received an unsigned claim from the Veteran seeking compensation for the disabilities listed on the attached page, which included only a claim for “New Claimed disabilities: 1. Hemorrhoids.” See VA Form 21-526EZ “Application for Disability Compensation and Related Compensation Benefits” received April 17, 2015. On April 27, 2015, the VA received another claim from the Veteran seeking compensation for the disabilities listed on the attached page, which include only the following identified disabilities: “New Claimed Disabilities: 1. hemorrhoids; Secondary Disabilities: 1. aneurysm (secondary to: coronary artery disease with hypertension) 2. Erectile Dysfunction (secondary to: coronary artery disease with hypertension). See VA Form 21-526EZ “Application for Disability Compensation and Related Compensation Benefits” received April 27, 2015. This claim form contained an electronic signature for the Veteran. On April 29, 2015, the VA received a blank VA Form 21-526EZ, which contained only the Veteran’s signature and date of “04-29-2015”, but all other blocks were blank, and no list of disabilities claimed was attached. Thereafter, the Veteran was provided VA examinations for each of the disabilities listed on the April 27, 2015 claim and a July 2015 rating decision was issued concerning service connection for the Veteran’s claimed disabilities of hemorrhoids (granted), abdominal aortic aneurysm (denied) and erectile dysfunction (denied). This rating decision was sent to the Veteran via a Notification letter dated August 3, 2015. The Veteran filed a timely notice of disagreement (NOD) dated August 9, 2015, which indicated disagreement with the rating decision notification letter dated August 9, 2015, and specifically listed only disagreement with the decision concerning service connection for his erectile dysfunction and abdominal aortic aneurysm. In his statement concerning the bases for his disagreement, the Veteran did not mention his CAD, except to state that he believed his abdominal aortic aneurysm is a direct result of his CAD. On October 28, 2015, the VA sent the Veteran a letter acknowledging receipt of his NOD for the August 2015 rating decision and advised the Veteran of his options going forward. In an August 21, 2015 letter, the VA acknowledged receipt of the Veteran’s August 19, 2015 notice of intent to file a claim. On November 24, 2015, the VA received the Veteran’s election to have his appeal processed as a de novo review. On July 26, 2016, the VA received another claim from the Veteran seeking compensation for the disabilities listed on the attached page, which include only the following identified disabilities: “Secondary Disabilities: 1. aneurysm (secondary to: coronary artery disease with hypertension); and Reopened Disabilities: 1. degenerative joint disease degenerative disc disease lumbar spine (claimed as lower back) 2. erectile dysfunction 3. abdominal aortic aneurysm.” See VA Form 21-526EZ “Application for Disability Compensation and Related Compensation Benefits” received July 26, 2016. This claim form contained an electronic signature for the Veteran. There was no claim for an increased rating for his CAD. In response to this new claim, on August 5, 2016, the VA sent to the Veteran and his representative a letter which acknowledged the July 26, 2016, claim for service-connected compensation for abdominal aortic aneurysm associated with artery disease with hypertension and erectile dysfunction, and further advised that these claims are already under appeal. There was no mention of any claim related to the Veteran’s CAD rating. The VA received on February 9, 2018, the Veteran’s election to opt-in to the Higher-Level Review option of the Rapid Appeals Modernization Program (RAMP) for his issues on appeal. On June 19, 2018, the VA sent a letter to the Veteran acknowledging receipt of his election to participate in the RAMP program for his appeal of decisions related to service connection for erectile dysfunction and abdominal aortic aneurysm, as the only issues listed. Thereafter, the RO issued a rating decision on July 3, 2018, which granted the Veteran’s request for service connection for erectile dysfunction but continued the denial of the claim related to his abdominal aortic aneurysm. This rating decision was sent to the Veteran via a VA notification letter dated August 20, 2018. In an August 23, 2018 letter, the VA acknowledged receipt of the Veteran’s August 23, 2018 notice of intent to file a claim. Thereafter, on September 21, 2018, the VA received another claim from the Veteran seeking compensation for numerous disabilities, including CAD claimed to be secondary to his erectile dysfunction. See VA Form 21-526EZ “Application for Disability Compensation and Related Compensation Benefits” received September 21, 2019. Thereafter, the Veteran was provided another examination on December 5, 2018 for his CAD. After review of the record, the Board finds that there is no evidence of a claim being filed by or on behalf of the Veteran for an increased rating for his CAD, prior to the August 23, 2018 notice of intent or within one year from the April 15, 2015 notice of intent as claimed by the Veteran. Accordingly, the Board finds that the Veteran’s claim for an increased disability rating for his CAD is August 23, 2018. When was first showing of entitlement to increased rating to 100 percent for CAD? As the Veteran claim for an increased rating for his CAD is August 23, 2018, the Board now looks to identify when the Veteran’s CAD disability increased to a 100 percent compensable level, including whether the Veteran met the criteria for a 100 percent rating for CAD for any portion of the one-year period prior to this date (i.e., August 23, 2017 to August 23, 2018). As the Veteran was awarded a 60 percent rating effective 2010, and the next highest available rating is 100 percent, the Board only need focus on when the Veteran’s disability rose to the 100 percent rating level. For CAD, a 100 percent disability rating under Diagnostic Code 7005 requires a showing of arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less which results of dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. Review of the Veteran’s VA treatment records do not reveal any tests or instances where the Veteran’s CAD symptoms rose to a 100 percent level. There is no record of the Veteran being diagnosed with congestive heart failure or having an LVEF of 30 percent or less during this period. While there were a few instances where the Veteran complained of dyspnea, including dyspnea on exertion, the dyspnea either dissipated within a few days with use of medications, or the Veteran himself stated that the dyspnea was due to his respiratory issues and not his heart. Follow-up treatment for the Veteran did not show any continued dyspnea related to his CAD or to a level required to entitle him to a higher rating. An echocardiogram performed on the Veteran by his private medical providers in November 2018, showed a LVEF estimated between 40 to 45 percent, which is not sufficient to rise to the level required. The first instance where the Veteran was shown to have symptoms significant enough to entitle him to the higher rating was during the November 2018 VA examination where the examiner indicated the Veteran’s MET levels to be between 1 to 3 METS due to symptoms of dyspnea and fatigue. This was determined through interview-based MET testing as the examiner determined that exercise based MET testing would expose the Veteran to significant risk. 38 C.F.R. § 4.104, Note 2. Based on this examination, the RO granted the Veteran a 100 percent disability rating effective August 23, 2018, the date of his claim. The Board finds that the record shows the first instance of the Veteran having symptoms severe enough to entitle him to a 100 percent disability rating for his CAD is during the November 2018 VA examination. The Board finds that the preponderance of the evidence is against the claim for an earlier effective date. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (Continued on the next page)   While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above the Board is precluded by statute from assigning an effective date prior to August 23, 2018 for the grant of an increased compensable rating for his CAD disability. Accordingly, the claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.