Citation Nr: 21003746 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 13-32 520 DATE: January 22, 2021 ORDER A disability rating in excess of 30 percent for service-connected coronary artery disease status post coronary artery bypass surgery is denied. Special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being housebound is denied. FINDINGS OF FACT 1. The Veteran’s coronary artery disease was not manifested by more than one episode of acute congestive heart failure in the past year; 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. 2. The evidence demonstrates the Veteran required the regular aid and attendance of another, but the requirement was not a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for service-connected coronary artery disease status post coronary artery bypass surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 2. The criteria for an award of SMC based on the regular need for aid and attendance or by reason of being housebound have not been satisfied. 38 U.S.C. §§ 1114, 5103, 5103A, 5017; 38 C.F.R. §§ 3.159, 3.350, 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from April 1969 to December 1970. Unfortunately, he passed away in October 2018. The appellant is continuing the appeal as his substitute claimant. See October 2019 Notification Letter. Procedurally, this matter comes before the Board of Veterans’ Appeals (Board) on appeal from the August 2012 and May 2014 rating decisions. In March 2018, the Board, in relevant part, denied entitlement to an evaluation in excess of 10 percent for service-connected coronary artery disease. The Board also remanded the issue of entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound for further development. The appellant appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2019 Order, the Court granted a Joint Motion for Remand (Joint Motion) filed by the parties to vacate and remand the portion of the Board’s March 2018 decision that denied entitlement to an increased evaluation for service-connected coronary artery disease. In August 2019, the Board remanded the issue of entitlement to an increased disability rating for coronary artery disease and directed the Agency of Original Jurisdiction (AOJ) to clarify whether the appellant wished to pursue the claim for SMC as a substitute claimant. Subsequently, the appellant clarified she did wish to continue pursuing the claim for entitlement to SMC as a substitute claimant. Following the Board’s remand and further development, in November 2020, the Regional Office (RO) issued a rating decision which increased the disability rating for service-connected coronary artery disease status post coronary artery bypass surgery to 30 percent, effective November 27, 2012. See November 2020 rating decision. That same month, a supplemental statement of the case (SSOC) denied a disability rating in excess of 30 percent for service-connected coronary artery disease status post coronary artery bypass surgery and entitlement to SMC based on the need for regular air and attendance or by reason of being housebound on the basis of substitution. Increased Rating Disability ratings are determined by applying the criteria set forth in 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. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Court has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 1. Entitlement to a disability rating in excess of 30 percent for service-connected coronary artery disease status post coronary artery bypass surgery As indicated above, the Veteran’s coronary artery disease status post coronary artery bypass surgery is currently evaluated under Diagnostic Code 7005 as 30 percent disabling. 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. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease), and requires documented coronary artery disease. Arteriosclerotic heart disease (coronary artery disease) resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 100 percent disabling. A Note to Diagnostic Code 7005 provides that, if non-service-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, the adjudicator is to request a medical opinion as to which condition is causing the current signs and symptoms. 38 C.F.R. § 4.104. Having reviewed the evidence of record, including the most recent VA medical opinions, the Board finds that the preponderance of the evidence is against an evaluation in excess of 30 percent for service-connected coronary artery disease. The evidence does not more closely reflect the criteria for a higher rating of 60 percent. In an August 2014 Notice of Disagreement (NOD), the Veteran argued that an April 2014 VA examination report was not an accurate portrayal of his disability. Instead, as stated by his physician, Dr. D., his ejection fraction was approximately 50 to 60 percent and he experienced dyspnea, fatigue, dizziness and syncope. See August 2014 NOD. A review of the April 2014 VA examination report shows the Veteran was given a diagnosis of ischemic heart disease and ischemic cardiomyopathy which required continuous medication. Testing reflected fatigue and an estimated METs level greater than 5-7, consistent with cardia functioning to perform activities such as golfing without a cart, mowing the lawn (push mowed), and heavy yardwork (digging). The examiner noted that this was the lowest level of activity in which the Veteran reported fatigue. The left ventricular ejection fraction (LVEF) was 74 percent based on August 2012 testing. The examiner indicated that the LVEF was a more accurate indicator of cardiac status than estimated METs. The examiner found the Veteran did not have cardiac hypertrophy or dilation. See April 2014 VA examination. Contrary to the findings of the April 2014 VA examiner, the record included evidence of left ventricular hypertrophy in June 2013. The treatment record showed the Veteran’s estimated LVEF was 60 percent. He also had a normal LVEF of 60 percent and mild to moderate left ventricular hypertrophy (LVH) on an echocardiogram in June 2016. And in May 2017, myocardial perfusion images showed an ejection fraction of 62. See Medical Treatment Records, received April 2014 and see Medical Treatment Records, received June 2017. In an October 2016 statement from the Veteran’s wife, now appellant, she described the Veteran as having an ejection fraction of approximately 60 percent. See October 2016 Statement. More recently, in December 2019, a VA examiner reviewed the Veteran’s records and opined that due to his heart condition only, the Veteran’s METS score was between 5-7 and consistent with an ejection fraction of 74 percent. As for the Veteran’s complaints of dizziness and fatigue, the examiner associated these complaints with his non-service-connected chronic kidney failure and need for dialysis. The examiner did note, however, that an echocardiogram in 2013 showed left ventricle hypertrophy. See December 2019 VA examination. Since the December 2019 VA examiner did not delineate the Veteran’s symptoms between his service-connected coronary artery disease and non-service connection cardiac conditions, another opinion was requested. Following a review of the Veteran’s records, in an October 2020 addendum medical opinion, a VA examiner reported the Veteran’s METs testing was subjective and included symptoms of comorbid conditions. The examiner indicated that the Veteran’s most recent LVEF of 60 percent best reflected his cardiac status as it related to coronary artery disease, but she was unable to retrospectively determine METs from clearly incomplete records. The examiner also indicated she was unable to determine the degree to which Veteran’s aortic stenosis and coronary artery disease had contributed to his hypertrophy or comment on the signs/symptoms of the Veteran’s coronary artery disease as the available records were limited. The examiner stated that any comment or association would be mere speculation without essential medical facts. Lastly, the examiner indicated there was no consistent objective evidence of cardiac dilation found in the claims file. Subsequently, in another October 2020 clarifying addendum opinion, the VA examiner explained that based on the limited medical records, the Veteran’s congestive heart failure and hypertrophy were “at least in part” due to his coronary artery disease. See October 2020 Medical Addendum Opinion. After reviewing the claims file, to include the evidence outlined above, the Board finds that the currently assigned 30 percent disability rating is supported based on the medical evidence demonstrating the existence of cardiac hypertrophy. In so finding, the Board acknowledges that the April 2014 VA examiner had found that the Veteran did not suffer from hypertrophy; however, cardiac hypertrophy was clearly documented in his private medical treatment records and found to be at least as likely as not associated with his service-connected coronary artery disease. However, a higher rating of 60 percent has not been met for the entire period at issue. The available medical records do not show that the Veteran had coronary artery disease resulting in 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. Accordingly, the Board finds that a disability rating in excess of 30 percent for service-connected coronary artery disease status post coronary artery bypass surgery is not warranted. The Board has considered the benefit-of-the-doubt rule in making this decision. 38 U.S.C. § 5107(b). 2. Entitlement to SMC based on the need for regular aid and attendance or by reason of being housebound At the time of the Veteran’s death, he had a pending claim for SMC based on the need for aid and attendance or at the housebound rate. SMC is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). As it pertains to the present case, the criteria for establishing such need includes whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature; or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to his daily environment. Id. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance not that there is a constant need for aid and attendance. 38 C.F.R. § 3.352(a); see Turco v. Brown, 9 Vet. App. 222, 224 (1996). For the purposes of 38 C.F.R. § 3.352(a), “bedridden” will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person. “Bedridden” will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. In order for the Veteran to prevail in the claim, the evidence must show that it was a service-connected disability or disabilities that resulted in the need for regular aid and attendance. Prejean v. West, 13 Vet. App. 444 (2000). At the time of the Veteran’s death, he was service-connected for: coronary artery disease, status post coronary artery bypass surgery; diabetes mellitus; diabetic peripheral neuropathy of the right and left lower extremity; and a scar associated with his coronary artery disease status post coronary artery bypass surgery. His combined disability rating was 60 percent. After reviewing the claims file, the Board finds the Veteran was in need of the regular aid and attendance of another person, but the need was not a result of a service-connected disability. Instead, his need for regular aid and attendance was predominantly caused by his chronic kidney disease which required regular dialysis. This condition was not service-connected. The record includes several examinations performed for Housebound Status or Permanent Need for Regular Aid and Attendance as well as buddy statements which clearly show the Veteran was limited in his independent abilities and instead, was mostly confined to his bed for the day and needing assistance to perform most of his activities of daily living. In particular, the Veteran needed help leaving the house due to balance issues leading to falls. In an April 2012 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance report it was indicated that the Veteran had the following diagnoses: kidney failure, ischemic heart disease, diabetes mellitus, bypass and aortic valve replacement, and retinopathy. The Veteran was confined to his bed for the entire day. He was able to feed himself but not prepare his own meals. The Veteran also needed assistance with bathing and grooming but was not legally blind and did not need nursing home care. He was unable to manage his medication amounts and times, and needed help with financial affairs. Poor balance and difficulty bending were noted and required the use of a cane to walk approximately four blocks. The Veteran left his home for dialysis with the assistance of a transportation service. See April 2012 VA 21-2680. In a July 2012 statement from the appellant, the Veteran’s wife, she reported the Veteran required assistance with all aspects of daily living. He needed help attending dialysis three times per week and for all other doctors’ appointments. She helped him get out of the apartment, including up and down the stairs and in and out of the vehicle. The Veteran also required assistance bathing, paying bills, managing money, dispensing and taking pills, setting and keeping doctors’ appointments, cooking, laundry, grooming and keeping his environment safe. He was also prone to falls and required help getting up. The appellant asserted these limitations were all due solely to his heart disease, which she also asserted caused his kidney failure that required dialysis three times per week. See July 2012 Statement. In a March 2014 Examination for Housebound Status or Permanent Need for Regular Air and Attendance report, received in April 2014, the Veteran’s diagnosis was noted as end stage renal disease on hemodialysis three times a week. He was noted to be able to feed himself but required help preparing his own meals, bathing and tending to other hygiene needs, taking his medication and managing financial affairs. The Veteran was not legally blind and did not require nursing home care at the time. The examination report indicated the Veteran left his house three days a week for dialysis treatment but did not require additional aid in locomotion. See April 2014 VA Form 21-2680. In an April 2014 statement from the appellant, she indicated she was unable to work full time because the Veteran required assistance. In particular, he required help with bathing, shopping, meal prepping, laundry, medication dispensation, paying bills, managing money, attending doctors’ appointments and basically most activities of daily living. See Third Party Correspondence (received in April 2014). Additionally, the appellant’s sister, K.M., also indicated she assisted in the aid and attendance of the Veteran. She would help him down the stairs, in an out of vehicles, cooked meals, took him to doctors’ appointments, dispensed medications and ensured his environment was safe. See Third Party Correspondence (received in April 2014). In another undated Examination for Housebound Status or Permanent Need for Regular Aid and Attendance report, received in May 2014, it was indicated that the Veteran’s diagnoses consisted of aortic insufficiency despite valve replacement, coronary artery disease, congestive heart failure and hypertension. The Veteran was noted to be able to feed himself but unable to shop or stand long enough to prepare meals, unable to enter and exit the shower without assistance with a history of falls noted. The Veteran was not legally blind and did not require nursing home care but did require medication management as well as financial assistance. He also had difficulty button his clothes, needed assistance with shoes and socks and lacked motor skills in his fingers. Poor balance was noted, with a history of falls again, which required assistance leaving his house and traveling. A wheelchair was used at times for locomotion. See May 2014 VA 21-2680. Another Examination for Housebound Status or Permanent Need for Regular Aid and Attendance report was received in July 2017; it is undated and unsigned. It stated that the Veteran’s diagnoses included ischemia of toes/legs, ischemic bowel, end stage renal failure, coronary artery disease, colostomy, diabetes mellitus, and amputation of right toes. It was indicated that the Veteran had required 24-hour care since June 2017. He sometimes required help cutting his food, was unable to stand or wheel himself around the kitchen to prepare meals and he was unable to get into the shower independently as he was prone to falls on his amputated foot. His disabilities caused him to require nursing home care, as well as medication management and financial assistance. He remained in bed or a chair, disoriented and confused, and having poor fine motor skills which resulted in him requiring a wheelchair with aid and attendance. See July 2017 VA 21-2680. In an August 2017 Request for Nursing Home Information in Connection with Claim for Aid and Attendance report, received in October 2017, the Veteran was noted to be confined to the bed for the entire day. He was able to feed himself but unable to prepare his own meals. The Veteran also needed assistance with bathing and dressing but was not blind. He did require nursing home care with his medication managed by nursing staff. The Veteran also had variable cognitive status based on the changes in his medication status. He had an unsteady gait due to his amputation, and chronic pain and difficulty with fine motor skills. However, he did not use canes, braces or crutches for ambulation. See October 2017 VA 21-2680. Lastly, in satisfaction of the Board’s August 2019 remand directives, a medical opinion was obtained from a VA examiner in December 2019 regarding whether the Veteran met the requirements for SMC based on the need for aid and attendance or by reason of being housebound prior to his death. Importantly, the examiner opined it was likely the Veteran had a need for aid and attendance but it would most likely be due to fatigue and weakness as a result of chronic kidney failure with dialysis since the most current ejection fraction was stable and within normal limits. See December 2019 VA medical opinion. While the Board acknowledges and is sympathetic to the fact that the Veteran was extremely limited in his independent functioning, clearly requiring assistance with activities such as cooking, bathing, dressing, medication management, financial management and was unable to leave the house without assistance during the period at issue, based on the totality of the evidence presented from the period on appeal, including the December 2019 VA examiner’s medical opinion, these limitations resulting in the need for aid and assistance were most likely caused by his non-service connected kidney failure with dialysis and not his service-connected coronary artery disease. In support of that opinion, the December 2019 examiner noted that the Veteran’s most recent ejection fraction was stable and within normal limits prior to his passing. The fact that his ejection fraction was stable is strong evidence to support the conclusion that the limitations he was experiencing which required the aid and attendance of another were not the result of his service-connected coronary artery disease but rather the result of other disabilities. It is further noted that although the Veteran’s coronary artery disease was often included as a relevant diagnosis in the multiple Examination for Housebound Status or Permanent Need for Regular Aid and Attendance reports submitted, neither did these reports indicate that the Veteran’s need for aid and attendance was attributable to that diagnosis or any other service-connected disability alone. Although the appellant believes the Veteran’s need for aid and attendance was wholly the result of his service-connected heart disease, she is not competent to provide an opinion regarding that matter. She is competent to report the symptoms and limitations that she observed the Veteran experiencing; however, she does not have the medical training necessary to state whether those symptoms and limitations were due to his service-connected coronary artery disease or other service-connected disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As for her statements as to the severity of the Veteran’s service-connected symptoms, they must be weighed against the other competent evidence of record. In this case, the Board finds that the specific examination findings of trained health care professionals are of greater probative weight than the appellant’s statements. These reports show the Veteran was greatly impacted by his kidney failure and its complications. In a statement received in July 2012, the appellant attempted to associate the Veteran’s kidney failure to his service-connected coronary artery disease. However, it is noted that service connection was previously denied for chronic kidney disease along with peripheral artery disease of the left and right lower extremities, as associated with the kidney disease. The Veteran was also previously denied service connection for retinopathy, ischemic bowel disease with colostomy, peripheral neuropathy of the right upper extremity, and amputation of the right foot toes. Notably, with respect to the amputated right foot toes, a VA examiner opined in July 2017 that the amputations were the result of the Veteran’s chronic kidney disease and not his service-connected diabetes mellitus. The Board emphasizes the fact that SMC is only available for service-connected conditions. 38 U.S.C. § 1114(l). Consequently, the Veteran’s SMC cannot be predicated on the conditions that the record demonstrates rendered the Veteran in need of aid and attendance during the time period relevant to this appeal. In conclusion, based on evidence of record, the Board finds that the criteria for SMC based on the need for regular aid and attendance or by reason of being housebound were not met. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran’s claim. Therefore, the benefit of the doubt rule cannot aid the Veteran’s claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.