Citation Nr: 21000114 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 05-38 647 DATE: January 4, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease from July 14, 2009, for accrued benefits purposes, is denied. FINDING OF FACT From July 14, 2009, the Veteran’s coronary artery disease was not shown to result in more than one episode of congestive heart failure in the past year; or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; nor resulted in left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease from July 14, 2009, for accrued benefits purposes, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5121; 38 C.F.R. §§ 3.102, 3.1000, 4.3, 4.7, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to September 1993. The Veteran passed away in May 2014 and the Veteran’s surviving spouse, the Appellant, was properly substituted as the claimant in the matter. The matter comes before the Board of Veterans’ Appeals (Board) from a February 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the RO, in a January 2013 rating decision, assigned an initial 60 percent disability rating for the Veteran’s coronary artery disease effective April 7, 2004, and assigned a 30 percent rating from July 14, 2009. The Board last remanded the issue on appeal in April 2020. The Board remanded for the RO to obtain the Veteran’s private treatment records from Metroplex Hospital dating from 2010 and onward. Additional private treatment records from the Metroplex Hospital were associated with the claims file in May 2020, and neither the Appellant nor her representative have identified any outstanding private treatment records. As such, a review of the record shows substantial compliance with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that its prior April 2020 Remand also denied the issue of entitlement to an initial disability rating in excess of 60 percent prior to July 14, 2009. Board decision are final when issued. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. Therefore, the Board’s April 2020 denial is final and no longer part of the appeal. As such, the remaining issue before the Board is characterized as shown on the title page of the instant decision. The Board further notes that the Veteran provided testimony before a Veterans Law Judge (VLJ) at a September 2008 travel board hearing. A copy of the transcript has been associated with the claims file. After the VLJ who held the September 20008 hearing retired from the Board, the Appellant was offered the opportunity to appear at another hearing before a different VLJ and provided 30 days to respond. See November 2020 Board Letter. To date, there has been no response to the November 2020 Board letter, no other request for a hearing has been received, and the 30-day period to respond has expired. As such, the Board may proceed with adjudicating the Appellant’s claim. Entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease from July 14, 2009, for accrued benefits purposes. The law provides for payment of certain accrued benefits upon death of a beneficiary. 38 U.S.C. § 5121. Accrued benefits are the monetary sums which the Veteran was legally entitled to receive from VA at the time of his death but were unpaid. Upon the death of the Veteran, all benefits which are properly payable shall be paid to the Veteran’s spouse, if living. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000. At the time of his death, the Veteran had a pending claim for entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease from July 14, 2009. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. During the appeal period, the Veteran’s coronary artery disease was rated as 30 percent disabling from July 14, 2009 under 38 C.F.R. § 4.101, Diagnostic Code (DC) 7005. Under DC 7005, a 30 percent rating is warranted for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray. Id. A 60 percent rating is warranted 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. Id. Upon thorough review of the record, the Board finds that a disability rating in excess of 30 percent from July 14, 2009 for the Veteran’s service-connected coronary artery disease is not warranted. In that regard, prior to his death, the Veteran provided a January 2010 statement in response to a prior April 2009 VA examination. The Veteran stated that he did not say he was not short of breath and had no chest pains at that examination. See January 2010 Statement in Support of Claim. The Veteran reported that his coronary artery disease affects his daily life, as he cannot walk, exercise, or stand a long time. Id. The Veteran was afforded a VA hearts conditions examination in March 2014. The VA examiner noted the Veteran’s report that he had chest pains, visited the emergency room at Metroplex Hospital for chest pains, and was treated by a private cardiologist. See March 2014 VA examination. The VA examiner noted the Veteran did not have any congestive heart failure and there was no mention of congestive heart failure in a discharge summary when treated from June 2010 to July 2010 at the Metroplex Hospital. Id. The VA examiner conducted an interview-based METs test and determined the Veteran’s METs level was greater than 5 but not greater than 7. Id. The VA examiner noted that a June 2010 echocardiogram showed mild concentric left ventricular hypertrophy with normal systolic function. Id. However, the VA examiner noted an inability to do an echocardiogram due to the Veteran’s body habitus and did not provide a percentage for left ventricular ejection fraction (LVEF). Id. In an April 2014 addendum, the VA examiner noted that the Veteran’s June 2010 echocardiogram that documented normal systolic function means greater than 50 percent and again notes that a current echocardiogram would not adequately assess his heart function due to his morbid obesity. See April 2014 addendum medical opinion. The VA examiner also noted that the Veteran’s prior two echocardiograms were also unable to provide a specific ejection fraction number due to his obesity. Id. The VA examiner conducted an in-person examination of the Veteran prior to his death and reviewed and indicated review of the claims file at the time. Id. Therefore, the Board finds the March 2014 and April 2014 addendum opinion adequate for decision making purposes and entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran’s VA treatment records do not demonstrate any indication of congestive heart failure; workload of greater than 3 METs but not greater that 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; nor left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent to warrant a higher evaluation from July 14, 2009. The Veteran’s private treatment records also do not contain any evidence to warrant a higher disability rating in excess of 30 percent for service-connected coronary artery disease from July 14, 2009. For example, the Veteran’s private treatment records contains a left ventriculography that demonstrated a LVEF of 60 percent. See July 2009 private treatment records. In June 2010, the Veteran was admitted to the hospital with complaints of chest pains. See June 2010 private treatment records. As noted by the March and April 2014 VA examiner, a June 2010 echocardiogram report notes that the Veteran’s ejection fraction was normal. Id. A July 2010 echocardiogram also notes that the Veteran’s ejection fraction was normal. See July 2010 private treatment records. Additionally, a June 2011 LVEF assessment notes “EF is normal.” See June 2011 private treatment records. The Veteran’s private treatment records do not contain any evidence of congestive heart failure or workload of greater than 5 METs but not greater than 7 METs from July 14, 2009. The Appellant’s representative asserts that an addendum medical opinion should have been requested to review the Veteran’s private treatment records. VA has a duty to provide an examination when there is evidence that the disability has worsened since the previous examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). The Board has a duty to return an inadequate examination report “if further evidence or clarification of the evidence…is essential for a proper appellate decision.” See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). In this case, a thorough review of the Veteran’s private treatment records reveals there was no indication that the Veteran’s service-connected coronary artery disease was worse than contemplated by the March 2014 VA examination and April 2014 VA addendum medical opinion. Moreover, as noted, the Board finds the March 2014 VA examination and April 2014 VA addendum opinion are adequate for decision making purposes. The Appellant, nor her representative, have provided any probative or competent evidence contrary to the March 2014 VA examination and April 2014 VA addendum medical opinion to warrant a higher rating. As such, remand for an addendum medical opinion is not warranted. To the extent the Appellant contends that the Veteran’s coronary artery disease was more severe than reflected by the current disability rating, the Board notes that she has not been shown to possess the medical expertise and knowledge to state that the Veteran’s coronary artery disease was of a severity sufficient to warrant a higher rating under VA’s Rating Schedule. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, the Board finds the evidence of record demonstrates the Veteran’s disability picture most nearly approximated the criteria for a 30 percent rating from July 14, 2009 for his service-connected coronary artery disease as currently assigned under DC 7005. See 38 C.F.R. § 4.104, DC 7005. As the preponderance of the evidence is against the claim for a disability rating in excess of 30 percent from July 14, 2009 for service-connected coronary artery disease, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (Continued on the next page)   The Appellant, nor her representative, have raised any other pertinent 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). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.