Citation Nr: 21003829 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 19-33 549 DATE: January 22, 2021 ORDER Entitlement for a rating in excess of 30 percent for coronary artery disease (CAD), status post coronary bypass, is denied. FINDINGS OF FACT The Veteran had cardiac hypertrophy on echocardiogram (ECG), but metabolic equivalents of task (METs) testing shows he did not develop dyspnea, fatigue, or other symptoms at a workload of 5 METs or less, and there was no evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent or more than one episode of active congestive heart failure (CHF) in the past year. CONCLUSION OF LAW The criteria are not met for a rating higher than 30 percent for the CAD, status post coronary bypass. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.100, 4.104, Diagnostic Code (DC/Code) 7017. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1963 to October 1969. This appeal to the Board of Veterans’ Appeals (Board) is from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted the Veteran’s claim of entitlement to service connection for CAD owing to his exposure to herbicides during his time in service. The RO assigned an initial 30 percent rating for this disability retroactively effective from September 22, 2017, so back to the date of receipt of his claim for this disease, and in response he appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating that when a Veteran appeals an initial rating, VA adjudicators must consider whether to “stage” the rating – meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others). Another RO decision since issued, in August 2019, in relevant part, granted a higher 100 percent initial rating for the CAD as of that same effective date – September 22, 2017. However, as of December 1, 2017, the CAD was rated again, instead, as 30-percent disabling. The Veteran since has continued to appeal for a higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal unless the Veteran receives the highest possible rating (for the entire rating period at issue) or expressly indicates he his satisfied or content with the new rating). On his October 2019 VA Form 9, Substantive Appeal to the Board, the Veteran requested a hearing concerning this claim. He more recently had the hearing in December 2020 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. During the hearing, the Veteran’s representative explained that they are very thankful for the increase in rating for the CAD to the 100-percent level as of September 22, 2017, so they are not contesting that since the highest possible schedular rating, only instead the ensuing 30 percent rating since December 1, 2017. Thus, this is what this appeal now concerns.   The Board has advanced this appeal on the docket. 38 C.F.R. § 20.900(c) (2017); 38 U.S.C. § 7107(a)(2). Entitlement for a rating higher than 30 percent for the CAD since December 1, 2017 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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.  When evaluating the severity of a disability, it is essential the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But, as already alluded to, if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  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. In general, 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.  The Veteran's CAD, status post-coronary bypass, is rated under 38 C.F.R. § 4.104, DC 7017. According to DC 7017, a 100 percent rating is provided for three months following hospital admission for coronary bypass surgery – which, here, already has occurred since the Veteran had an initial 100 percent rating following his coronary bypass surgery, and that initial 100 percent rating remained in effect from September 22, 2017 until December 1 2017 (so for the required 3 months). He has had the lesser 30 percent rating since December 1, 2017. A 30 percent rating is warranted where a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, where there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 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. See 38 C.F.R. § 4.104, DC 7017. A higher 60 percent rating is warranted where a workload 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. 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. See Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). An even higher 100 percent rating, the maximum possible, is warranted where there is chronic CHF; or, where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The Veteran underwent a VA cardiovascular examination in October 2017, so relatively shortly after his August 2017 coronary bypass surgery. The examiner indicated that an exercise stress test was not required as part of the then-current treatment plan and was not without significant risk during that evaluation since the Veteran so recently had undergone the heart surgery. The examiner nonetheless surmised, based on interviewing the Veteran, that he would begin experiencing symptoms at a workload of more than 5 but less than 7 METs. This level of impairment indicates symptom manifestation, such as fatigue, with activities similar to walking one flight of stairs, golfing, mowing a lawn with a push mower, and heavy yard work such as digging. The Rating Schedule, so including DC 7017, permits the examiner to estimate the METs in this circumstance, such as by gleaning this information from interviewing the Veteran, when the actual testing cannot be done during the evaluation or is contraindicated – such as, here, because of the Veteran’s then recent heart surgery. During the recent hearing before this Board, the Veteran testified that he has exertional fatigue (gets “winded”), even still, so often must stop what he is doing and rest. He added that he resultantly cannot work in his yard very often, if at all, can only lift minimal weight, cannot climb ladders, do roofing, etc., or anything strenuous. He said he can use his riding lawnmower, but only because it just requires minimal effort. He said he sometimes has indigestion and sometimes chest pain, still, meaning even since his coronary bypass surgery. In other testimony during his hearing, the Veteran and his representative pointed out that the VA examination in October 2017 was only just over a month after the Veteran's heart bypass surgery in August 2017, so that examiner did not or could not correctly measure METs, etc., because the Veteran was still recovering from his surgery and had been told by his doctor not to do anything physically (e.g., not to lift arms above head, minimal, if any, lifting). They added that the Veteran had a 12-week post-operative rehabilitation program, so continuing into early 2018, meaning to January 2018 or thereabouts. Because of the nearness of that examination to the Veteran’s heart surgery, and since it was during his recuperation, they requested the Board remand this claim for reexamination. However, the Board does not find additional examination to be warranted in this instance since, to reiterate, even in these circumstances presented, it is permissible for the VA examiner to get some sense of the Veteran’s METs level by interviewing him, which the October 2017 VA examiner did. Moreover, in November 2018, so since completion of the Veteran’s post-operative rehabilitation (which concluded in January 2018 or thereabouts), he has undergone an exercise stress test on direction of Dr. Peterson, his treating cardiologist.   And, notably, that stress test resulted in fatigue at a workload of 9 METs with an ejection fraction of 64 percent. An even more recent December 2019 exercise stress test resulted in fatigue at a workload of 7.7 METs with an ejection fraction of 62 percent. That examination also revealed hypertrophy on ECG. Thus, considering the entire record, including this more recent evidence of additional testing and evaluation since the Veteran’s October 2017 examination, the Board finds increasing the Veteran’s rating is not warranted. In making this finding, the Board has considered all his statements, including those made to providers and under oath during his hearing. He is competent to identify and observe the effect of his disability under the ordinary conditions of daily life. His heart condition manifests with symptoms particularly observable even by a layman, such as dyspnea or fatigue. Accordingly, his lay testimony and statements concerning this are competent, but also credible since not contradicted by the other evidence in the file, including to some extent by the medical evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, the Rating Schedule for evaluating CAD requires considering precise medical findings, including METs and other diagnostic findings and objective data, not mere subjective lay opinion. See 38 C.F.R. § 4.100. The Rating Schedule shows a clear preference for exercise-based stress testing to measure METs where such testing is not medically contraindicated. 38 C.F.R. § 4.104, Note (2). Where “exercise testing cannot be done for medical reasons, an estimation by a medical examiner…may be used.” Id. A 30 percent rating requires symptom manifestation at a workload of 5-7 METs, and all higher ratings require manifestation at a workload of less than 5 METs. Here, though, upon complete review, the record does not reflect fatigue or other symptoms at a workload of 7 or fewer METs, at any time since December 1, 2017. The Veteran’s competent and credible – therefore, ultimately probative, testimony during his recent hearing is consistent with the symptoms described for a 30 percent METs workload impairment level, which specifically cites fatigue with mowing a lawn with a push mower and heavy yard work such as digging. His exercise stress tests reflect a METs workload higher than what is required for a 30 percent rating. There is no evidence of an ejection fraction of 30 to 50 percent. His cardiac hypertrophy, as evidenced by ECG, indicates that he has an appropriate schedular 30 percent disability rating. 38 C.F.R. § 4.104, DC 7017. At his hearing, aside from the lack of METs testing already discussed, the Veteran also alleged his October 2017 VA examination was inadequate because it did not involve any exercise stress test at all. But one must also keep in mind that he since has undergone stress tests, meaning since that VA examination and even since conclusion of the rehabilitation he had to do after his surgery that continued until January 2018 or thereabouts. His treatment reports, especially as a whole, are accepted as adequate because they collectively provide evidentiary information speaking directly to his subjective complaints, the objective findings found on evaluation, and include medical opinions addressing the applicable rating requirements. 38 C.F.R. § 3.326. Moreover, there has not been any challenge to the competence of the October 2017 VA examiner and, as discussed, that examiner provided the required best estimation of the Veteran’s METs, etc., even though the actual exercise stress testing could not be done, and the more recent evidence supplements the file with all needed additional information – including, notably, this additional testing, which since has been done on even more than one occasion. See Francway v. Wilkie, 940 F.3d 1304, 1308 (Fed. Cir. 2019) (distinguishing a challenge to the competence of an examiner from the adequacy of an examination). At the time of the October 2017 examination, the examiner found that a stress test was not required and was not without risk – again, since that examination was so relatively soon after the Veteran’s heart surgery. But, to reiterate, exercise stress tests are not required under law if a Veteran is unable to perform one without risk to his health. See 38 C.F.R. §§ 4.100, 4.104, Note (2). On review of the evidence, there is no indication that the examination is otherwise inadequate or stands in contradiction to the rest of the record – which, notably, does provide the results of stress tests since done. Accordingly, VA's duty to assist with respect to obtaining an adequate VA examination has been met and reexamination is not required. 38 C.F.R. §§ 3.159(c)(4), 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that, when VA endeavors to provide an examination, even when not statutorily obligated to, it must ensure the examination is adequate, else, notify the claimant why one cannot or will not be provided). In sum, the record does not reflect symptom manifestation at a workload equal to or less than 5 METs; left ventricular dysfunction with an ejection fraction of 50 percent or less; or chronic CHF. Therefore, this claim of entitlement to a rating greater than 30 percent for the CAD, status post coronary bypass, must be denied because the preponderance of the evidence is against this claim, not instead supportive of it or even in relative balance for versus against the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.