Citation Nr: 21002984 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-48 429 DATE: January 19, 2021 ORDER Entitlement to a 100 percent rating effective March 15, 2007, through July 26, 2007, for service-connected coronary artery disease with quadruple bypass surgery (CAD) for the purposes of retroactive benefits is granted. Entitlement to a rating in excess of 10 percent effective October 28, 2007, through March 20, 2013, for service-connected CAD for the purposes of retroactive benefits is denied. FINDINGS OF FACT 1. Resolving doubt in the appellant’s favor, for the period from March 15, 2007, through July 26, 2007, the Veteran’s symptoms of CAD more nearly approximated chronic congestive heart failure. 2. For the period from October 28, 2007, through March 20, 2013, the Veteran’s CAD was not manifested by evidence of a workload of greater than 5 metabolic equivalents (METs), but not greater than 7 METs, which resulted in dyspnea, fatigue, angina, dizziness or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram (ECG), echocardiogram (EKG) or X-ray examination, or left ventricular dysfunction with an ejection fraction less than 50 percent. CONCLUSIONS OF LAW 1. For the period from March 15, 2007, through July 26, 2007, the criteria for a 100 percent rating for CAD for the purposes of retroactive benefits have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7005. 2. For the period from October 28, 2007, through March 20, 2013, the criteria for a rating in excess of 10 percent for CAD for the purposes of retroactive benefits have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from September 1968 to September 1970. His awards include the Combat Infantryman Badge. He died in September 2015; the Appellant is his surviving spouse. The Appellant testified at a Board videoconference hearing before the undersigned in February 2020. This matter was before the Board in May 2020 when it was remanded for additional development. The issue on appeal concerns the matter of whether VA assigned the correct percentages and effective dates for the Veteran’s service-connected CAD for the purposes of retroactive benefits. The Veteran’s CAD was assigned the following disability ratings: 10 percent from March 15, 2007, through July 26, 2007; 100 percent (temporary total rating) from July 27, 2007, through October 27, 2007; 10 percent from October 28, 2007, through March 20, 2013; and 100 percent from March 21, 2013, until his death in September 2015. The Appellant maintains that the symptoms of the Veteran’s service-connected heart disability were just as severe following surgery in July 2007 as they were in 2013, when the disability was rated 100 percent disabling. Specifically, she maintains that the Veteran was weak and unable to walk long distances or drive. Therefore, she contends that a 100 percent rating is warranted for the entire period of the appeal (from March 15, 2007). See December 2015 Notice of Disagreement, September 2016 VA Form 9, February 2020 hearing transcript, and May 2020 Correspondence. The Veteran’s heart disability has been rated under Diagnostic Code (DC) 7005 for arteriosclerotic heart disease. DC 7005 provides that a 10 percent is warranted for a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication required. A 30 percent rating is warranted for 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 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, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. A 100 percent rating contemplates chronic congestive heart failure; a workload of three METs or less, resulting in 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, DC 7005. One MET (metabolic equivalent) is defined as 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 evaluation, and a laboratory determination 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. A total rating (100 percent) for convalescence is assigned following hospital discharge, effective from the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release, if the hospital treatment of the service-connected disability resulted in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. A temporary total disability rating is to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. See 38 C.F.R. § 4.30. Extensions of one to three months, beyond the initial three months, may be made under 38 C.F.R. § 4.30(a)(1), (2), or (3). Extensions of one or more months up to six months beyond the initial six months period may be made only under 38 C.F.R. § 4.30(a)(2) or (3) upon the approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b). As noted above, there are two distinct periods wherein a rating less than 100 percent has been assigned for the Veteran’s CAD: from March 15, 2007, through July 26, 2007, and from October 28, 2007, through March 20, 2013. Each period is discussed in turn below. For the period from the award of service connection on March 15, 2007, through July 26, 2007, the Veteran’s service-connected CAD is assigned a 10 percent rating. VA treatment records for this period are silent for any complaints or findings related to CAD. However, a March 2007 letter from the Veteran’s private physician notes that the Veteran had suffered a non ST elevation myocardial infarction and a stroke in November 2006, and that his current diagnosis was CAD. Additionally, a July 27, 2007, VA operative note shows that the Veteran was having exercise-related fatigue and that a prior stress test had been “markedly abnormal.” These findings resulted in a cardiac catheterization which demonstrated evidence of severe multivessel CAD. Surgical revascularization was recommended and scheduled for July 27, 2007. The evidence for the period prior to July 27, 2007, does not include any specific assessments of work capacity in METs by exercise testing, or even a METs estimate. However, this period represents the four months immediately prior to the Veteran’s coronary bypass graft surgery (for five vessels), and the evidence indicates he was having exercise-related fatigue with a markedly abnormal stress test. Giving the Appellant the benefit of the doubt, the Board finds that a 100 percent disability rating under DC 7005 is warranted for the period from the initial award of service connection on March 15, 2007, through July 26, 2007, based on medical evidence that contemplates chronic congestive heart failure. This is the maximum rating possible for that period of the appeal. As noted, the Veteran underwent heart surgery on July 27, 2007, and a 100 percent temporary total disability rating for convalescence has been assigned for the three months following (through October 27, 2007) under 38 C.F.R. § 4.30. Therefore, this period will not be addressed further. For the period following the temporary total rating period, from October 28, 2007, through March 20, 2013, the Veteran’s service-connected CAD has been assigned a 10 percent rating. No private treatment records are available for the period from October 2007 through March 2013. See May 2020 letter from Dr. G. A November 2008 VA primary care note shows that the Veteran had been seen previously by a private physician, but wished to transfer his care to the VA clinic. He was trying to take his medication as directed and stay active. He had no acute complaints. January 2009 VA treatment records note that the Veteran had recovered satisfactorily from heart surgery, and that he had no new complaints. He denied chest pain and shortness of breath. He exercised by riding a stationary bike and walking. He continued to take medication for his heart disability. In January 2010 the Veteran denied chest pain and shortness of breath. He reported that he was still exercising by riding a stationary bike and walking, in addition to going to physical therapy. A February 2011 ECG noted findings of sinus bradycardia but was otherwise normal. In April 2011, the Veteran reported having no episodes of angina or congestive heart failure since his 2007 surgery. In November 2013, the Veteran’s heart was in normal rhythm on examination. The evidence for this period does not support the criteria for a rating in excess of 10 percent for CAD under DC 7005. In that regard, the evidence shows a diagnosis of CAD for which the Veteran took continuous medication. There was no congestive heart failure, myocardial infarction, or heart valve condition, and the Veteran denied chest pain and shortness of breath during follow-up treatment. There was no evidence of cardiac hypertrophy or dilatation. The Board acknowledges that at the February 2020 Board hearing and in subsequent correspondences, the Appellant reported that the Veteran was unable to continue with his normal physical activities following his heart surgery in 2007, and that he was just as weak from 2007 to 2013, as he was in 2013 (when his CAD was awarded a 100 percent rating on March 21, 2013). However, the treatment records from that time period show the Veteran was noted to have recovered satisfactorily from his heart surgery, and that he reported exercising on a stationary bike and by walking in 2009 and 2010; he did not report any complaints or limitations associated with this exercise. Also in May 2020, the Appellant submitted a statement dated that same month from the Veteran’s former cardiologist, Dr. A.G. Although Dr. A.G. did not have any treatment records to provide, he provided confirmation that he had treated the Veteran from 2007 when he underwent a myocardial infarction and underwent multivessel coronary artery bypass grafting for the treatment of severe multivessel coronary artery disease. He also noted that the Veteran continued to be treated for his cardiac problems, advanced CAD until the time of his death in 2015. The Board observes that while this statement confirms that the Veteran continued to receive cardiac care up until the date of his passing, it does not describe any specific symptoms from 2007 to 2013 that the Board may consider when evaluating the severity of the Veteran’s CAD for that time period. (Continued on the next page)   In consideration of the foregoing, the Board concludes that for the period from October 28, 2007, through March 20, 2013, the competent evidence of record does not show the Veteran’s CAD more nearly approximated a workload of 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation. Thus, a rating in excess of 10 percent for CAD is not warranted at any time during this period. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. R. Fletcher, 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.