Citation Nr: 21001419 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-17 221 DATE: January 8, 2021 ORDER Entitlement to an initial rating of 30 percent, but no higher, for coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft from March 18, 2005 to November 3, 2005, and from March 1, 2006, to July 6, 2017, is granted. Entitlement to a rating of 60 percent, but no higher, for coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft from July 7, 2017, to January 15, 2020, is granted. FINDINGS OF FACT 1. From March 18, 2005 to November 3, 2005, and from March 1, 2006, to July 6, 2017, the Veteran’s coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft, was manifested by cardiac hypertrophy on echocardiogram. 2. From July 7, 2017, to January 15, 2020, the Veteran’s coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft, was manifested by evidence of left ventricular dysfunction with an ejection fraction of 50 percent. CONCLUSIONS OF LAW 1. From March 18, 2005 to November 3, 2005, and from March 1, 2006, to July 6, 2017, the criteria for a rating of 30 percent, but no higher, for coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.104, Diagnostic Code 7005. 2. From July 7, 2017, to January 15, 2020, the criteria for a rating of 60 percent, but no higher, for coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to December 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions. An October 2008 rating decision granted service connection for coronary atherosclerosis with aortic stenosis, and assigned a noncompensable rating, effective March 18, 2005. The Veteran submitted a claim for an increased rating for coronary atherosclerosis with aortic stenosis in February 2014. VA conducted a review of the Veteran’s claim based on Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 (N.D. Cal. May 17, 1991). After that review, a February 2014 rating decision continued the previous noncompensable rating for the Veteran’s coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft from March 18, 2005 to November 3, 2005, assigned a 100 percent disability rating from November 4, 2005 to February 28, 2006, and assigned a 10 percent disability rating from March 1, 2006, forward. Within one year of the February 2014 rating decision, the Veteran submitted new and material evidence and requested reconsideration of that rating decision. See 38 C.F.R.§3.156 (b); November 2014 Statement in Support of Claim. In an April 2015 rating decision, the disability rating for the Veteran’s coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft was increased to 30 percent, effective October 22, 2014. The Veteran perfected an appeal. A March 2016 rating decision assigned a 30 percent disability rating for the Veteran’s coronary atherosclerosis, effective February 4, 2014. In March 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran’s claim for an increased rating was remanded by the Board in June 2018 and again in March 2020. A temporary 100 percent rating based on coronary artery bypass graft (CABG)) procedure has been granted from November 4, 2005 to February 28, 2006; and a 100 percent rating based on a finding of congestive heart failure on VA examination has been granted from January 16, 2020, forward. Therefore, the Board will only address the ratings for coronary atherosclerosis with aortic stenosis from March 18, 2005 to November 3, 2005 and from March 1, 2006 to January 15, 2020. As noted in the June 2018 and March 2020 remands, the rating decisions of October 2008, February 2014, and April 2015 have not become final and are not subject to assertions of clear and unmistakable error (CUE) claims. See 38 C.F.R. § 3.105 (a) (a previous Agency of Original Jurisdiction determination that was final and binding will be accepted as correct in the absence of CUE). Therefore, the Veteran’s claim for an increased rating on appeal is properly characterized as a staged rating, as set forth on the title page. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. As the Veteran is appealing the original assignment of the disability rating following the award of service connection for coronary atherosclerosis with aortic stenosis, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Under DC 7005, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted 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 dilation on electrocardiogram, echocardiogram, or X-ray. 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. A 100 percent rating is warranted for 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. 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. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required 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. Id. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase “30 to 50 percent” means 30 percent through 50 percent. Id. at 380. For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382. Private treatment records include a June 2005 letter from the Veteran’s private cardiologist indicating a diagnosis of moderate-to-severe aortic stenosis. A September 2005 echocardiogram report indicated borderline concentric left ventricular hypertrophy with left ventricular ejection fraction of 63 percent. In October 2005, the Veteran’s left ventricular diastolic function was consistent with abnormal relaxation (stage 1) with ejection fraction of 60 percent (+/- 5 percent). In November 2005, the Veteran underwent surgical revascularization and aortic valve replacement for severe aortic stenosis and CAD. The Veteran underwent VA heart examination in January 2006 at which time he reported having history of dyspnea on moderate exertion. Testing demonstrated left ventricular ejection fraction of greater than 50 percent. X-ray demonstrated normal cardiovascular silhouette and mediastinal margins. The Veteran underwent VA ischemic heart disease examination in December 2013 at which time current medications included metoprolol. The Veteran did not have CHF. METs based on interview was >3-5 METs with dyspnea. The examiner noted that there was no evidence of cardiac hypertrophy or dilation on either the May 2005 EKG or the December 2013 echocardiogram. Testing demonstrated left ventricular ejection fraction of 60.7 percent. X-ray demonstrated normal cardiovascular silhouette and mediastinal margins. A letter from the Veteran’s private cardiologist received in November 2014 indicates that his last stress test was performed in June 2010 where he completed six minutes and 40 seconds of a Bruce protocol treadmill stress test which is the equivalent to 7 METs. The cardiologist noted that the Veteran continued with exertional dyspnea and some degree of disability because of shortness of breath. VA treatment records from March 2005 to November 2019 show left ventricular ejection fractions all greater than 50 percent. Private treatment records received from May 2019 to June 2020 show left ventricular ejection fractions greater than 50 percent from September 2005 to May 2016, and in October 2018 and December 2019. A left ventricular ejection fraction of 50 percent was shown on July 7, 2017, with left ventricular systolic function mildly reduced. In addition, these records show evidence of cardiac hypertrophy or dilation on echocardiogram in December 2004, September 2005, March 2007, June 2010, May 2016, October 2018, and December 2019. Further, these records show a workload of 7 METs in June 2010 and July 2017, as well as a November 21, 2014 Stress Final Report showing METs of 2.1. The Veteran underwent VA heart conditions examination in July 2019. The Veteran did not have CHF. METs based on July 2017 exercise stress test was 7 METs with dyspnea. The examiner noted that there was evidence of cardiac hypertrophy on the May 2016 echocardiogram and left ventricular ejection fraction was 60 percent at that time. Private treatment records include a June 2020 CT of the thorax interpreted as showing improvement in congestive heart failure (CHF) when compared to a January 2020 examination which showed congestive heart failure. The Veteran underwent VA heart conditions examination in July 2020, at which time he was diagnosed as having CHF. Interview-based METs test showed 1-3 METs with dyspnea and fatigue. The examiner noted that there was evidence of cardiac hypertrophy on the December 2019 echocardiogram and left ventricular ejection fraction was 55 percent. Considering all relevant evidence of record, the Board finds that an initial rating of 30 percent, but no higher, is warranted from March 18, 2005 to November 3, 2005 and from March 1, 2006 to July 6, 2017, as the Veteran’s coronary atherosclerosis with aortic stenosis, status post coronary artery bypass graft, was manifested by cardiac hypertrophy on echocardiogram. A left ventricular hypertrophy was noted in a September 2005 letter from the Veteran’s cardiologist, and it was again demonstrated on echocardiograms in March 2007, June 2010 and May 2016. However, at no time from March 18, 2005 to November 3, 2005, and from March 1, 2006 to July 6, 2017, was a rating higher than 30 percent warranted as the Veteran’s heart condition was not manifested by evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent or any episodes of congestive heart failure. With respect to METs, a workload of 3 METs or less on metabolic equivalent testing was shown on the November 21, 2014 Q-Stress Final Report, noting METs of 2.1. However, all testing prior to and subsequent to November 2014 showed a workload greater than 3 METs, to include on private testing in June 2010 and July 2017, as well as on VA examination in December 2013. Indeed, June 2010 and July 2017 exercise stress tests revealed findings of a workload of 7 METs. Accordingly, because the November 2014 METs of 2.1 is an outlier and is not consistent with the other evidence of record dated both prior and subsequently, including in June 2010, December 2013 and July 2017, the Board finds that it is not probative and is not sufficient to support the assignment of a rating in excess of 30 percent from March 18, 2005 to November 3, 2005, and from March 1, 2006 to July 6, 2017. The Board finds that a 60 percent rating is warranted for the Veteran’s heart condition from July 7, 2017, to January 15, 2020, based upon the evidence of a left ventricular ejection fraction of 50 percent, with left ventricular systolic function mildly reduced, shown on the echocardiogram dated July 7, 2017. However, at no time from July 7, 2017, to January 15, 2020, was a rating higher than 60 percent warranted as the Veteran’s heart condition was not manifested by chronic congestive heart failure, a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. (Continued on the next page)   In sum, the Board finds that an initial rating of 30 percent, but no higher, is warranted from March 18, 2005 to November 3, 2005 and from March 1, 2006 to July 6, 2017, and a rating of 60 percent, but no higher, is warranted from July 7, 2017, to January 15, 2020. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, 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.