Citation Nr: 21004239 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-02 038 DATE: January 26, 2021 ORDER The reduction in rating for ischemic heart disease with ischemic cardiomyopathy from 100 to 30 percent, effective October 1, 2014, was proper. For the period from October 1, 2014, through June 6, 2016, a rating in excess of 30 percent for ischemic heart disease with ischemic cardiomyopathy, is denied. For the period from June 6, 2016, through July 28, 2016, a rating in excess of 60 percent for ischemic heart disease with ischemic cardiomyopathy, is denied. REMANDED The issue of service connection for a respiratory disorder, to include chronic obstructive pulmonary disease (COPD) and chronic bronchiectasis, is remanded. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a letter, dated December 17, 2013, the RO informed the Veteran that it proposed to reduce his rating for ischemic heart disease with ischemic cardiomyopathy from 100 percent to 10 percent and that he could submit additional evidence as to why that reduction should not be made. 2. In a letter, dated July 3, 2014, the RO informed the Veteran that records noted improvement in the Veteran’s ischemic heart disease with ischemic cardiomyopathy and that it had reduced his rating for ischemic heart disease with ischemic cardiomyopathy from 100 percent to 10 percent (later increased to 30 percent), effective October 1, 2014. 3. For the period from October 1, 2014, through June 6, 2016, the Veteran’s ischemic heart disease with ischemic cardiomyopathy was not manifested by congestive heart failure, a workload of less than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 50 percent or less. 4. For the period from June 6, 2016, to July 28, 2016, the Veteran’s ischemic heart disease with ischemic cardiomyopathy was not manifested by chronic congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or in left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria were met to reduce the Veteran’s rating for ischemic heart disease with ischemic cardiomyopathy from 100 percent to 30 percent, effective October 1, 2014. 38 C.F.R. § 3.105(e). 2. For the period from October 1, 2014, through June 6, 2016, the criteria to establish a rating in excess of 30 percent for ischemic heart disease with ischemic cardiomyopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.104, Diagnostic Code 7005. 3. For the period from June 6, 2016, through July 28, 2016, the criteria to establish a rating in excess of 60 percent for ischemic heart disease with ischemic cardiomyopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in July 2018. Most recently, in November 2018, the Board remanded these matters for further evidentiary development. In particular, the Board remanded the issue of an evaluation in excess of 10 percent for IHD with ischemic cardiomyopathy, to include the propriety of the reduction from 100 percent to 10 percent disabling, effective October 1, 2014, to obtain clarification of an April 2012 and January 2014 private Disability Benefits Questionnaire by Dr. Ferris George due to internal inconsistencies. Such clarification, however, has not been received by Dr. George. Letters were sent by the RO to Dr. George’s office in March 2019 and January 2020. A July 2020 Report of General Information shows that Dr. George’s office was called, but he was not available. His nurse stated that she would provide the message to Dr. George and he should have returned the call either that day or the next. An August 2020 supplemental statement of the case (SSOC) noted that a response/call back was never received by Dr. George. As Dr. George did not respond to the March 2019 and January 2020 letters requesting clarification or the July 2020 phone call to his office, the Board finds that any further attempts in obtaining clarification from Dr. George would likely be a waste of VA resources. Accordingly, the Board finds the duty to assist requirements have been fulfilled. As such, the Board has determined that there has been substantial compliance with such development sought during the prior November 2018 Board Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Lastly, of note, in an August 2020 rating decision, the RO found clear and unmistakable error and granted entitlement earlier effective dates for service connection of ischemic heart disease with ischemic cardiomyopathy. A 60 percent rating was assigned as of August 31, 2010. A 30 percent rating was assigned as of October 1, 2014. A 60 percent rating was assigned as of June 16, 2016. A 100 percent rating was assigned as of July 28, 2016. Accordingly, the Board has recharacterized the remaining issues on appeal. Ischemic Heart Disease Disability The Veteran asserts that the ratings for his service-connected ischemic heart disease with ischemic cardiomyopathy do not adequately reflect the severity of that disorder. He further asserts that his rating for ischemic heart disease with ischemic cardiomyopathy should not have been reduced from the 100 percent schedular evaluation. Therefore, he maintains that the 100 percent schedular rating should be restored. At the very least, the Veteran contends that an increased rating is warranted; however, after carefully considering the appeal in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against those claims. In September 2012, the RO granted service connection for ischemic heart disease with ischemic cardiomyopathy and assigned a 10 percent schedular rating, effective April 13, 2011. 38 C.F.R. § 4.115b, Diagnostic Code 7005. An evaluation of 100 percent was assigned from April 25, 2012. In November 2013, the Veteran underwent a mandatory VA examination to determine if there had been any change in the evaluation. It was noted that the Veteran’s treatment plan included taking continuous medication for his condition. The examiner remarked that during examination, “the Veteran was observed to walk, unassisted, at a steady pace while conversing with examiner, from the waiting area to [examination] room, and then back ([approximately 70 yards] each way) with mild signs of dyspnea, but no signs of discomfort.” Exercise METs testing was not completed because it was not required as part of the Veteran’s treatment plan. Veteran’s estimated METS level due solely to his heart disease was greater than 10. It was noted that his actual activity tolerance would be significantly less due to respiratory disease and hypertensive cardiovascular disease. In December 2013, the RO proposed that the Veteran’s rating for ischemic heart disease with ischemic cardiomyopathy be reduced to 10 percent. On December 31, 2013, the RO informed the Veteran of the proposed reduction, and that he could submit medical or other evidence to show why the change should not be made. The RO stated that if it did not receive additional evidence within 60 days, the reduction would begin the first day of the third month following the notice of the final decision. 38 C.F.R. § 3.105(e) (2009). In January 2014, the Veteran submitted a statement requesting re-examination and he additionally submitted a private DBQ completed by Dr. Ferris George. The January 2014 DBQ noted an April 2012 stress test which yielded a finding of 7.0 METs. The form also indicated that a diagnostic exercise test had not been completed and checked of boxes indicating estimates of 1-3 and >3-5 METs. In a July 2014 rating decision, the RO acknowledged the Veteran’s request for a re-examination. The RO also noted that the new DBQ completed by Dr. George duplicated an earlier questionnaire (the April 2012 private DBQ). Consequently, the RO reduced the Veteran’s rating for the ischemic heart disease with ischemic cardiomyopathy from 100 percent to 10 percent, effective October 1, 2014. 38 C.F.R. § 4.115b, Diagnostic Code 7005. On July 3, 2014, the RO sent the Veteran a letter informing him of that reduction. The Veteran disagreed with that reduction, and this appeal ensued. Initially, the Board notes that the reduction from 100 percent to 10 percent for the Veteran’s ischemic heart disease with ischemic cardiomyopathy was properly carried out in accordance with 38 C.F.R. § 3.105(e). That rating was subsequently raised to 30 percent, effective October 1, 2014; to 60 percent, effective June 6, 2016; and to 100 percent, effective July 28, 2016. Therefore, the questions are whether a rating in excess of 30 percent is warranted from October 1, 2014, through June 6, 2016, and whether a rating in excess of 60 percent is warranted from June 6, 2016, through July 28, 2016. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282(1991). Where entitlement to compensation has already 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). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran’s ischemic heart disease with ischemic cardiomyopathy is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7005, which provides that a 30 percent evaluation is assigned for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted when there is more than one episode of congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope; or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating contemplates documented 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. From October 1, 2014, through June 6, 2016 Following a November 2014 VA examination, the examiner remarked, **1. There is currently no objective evidence of ischemic heart disease. METs greater than ten from a cardiac standpoint. **2. Cardiac stress testing is medically contraindicated for C&P purposes as METS are easily estimated based on the [V]eteran’s known disease, level of physical activity and reported symptoms. Due to COPD, he would be unable to complete an adequate stress test. **3. Discussion: It is clear that the Cardiologist in 2008 was very concerned that the [V]eteran had significant ischemic heart disease based on the stress myocardial perfusion test and that he felt cardiac catheterization (cath) was indicated. Of note, METs at this time on the stress test were 7. One year later when the [V]eteran was seen again in Cardiology clinic by a different cardiologist, since he had done well with little symptomatology, it was decided that cardiac catheterization was not indicated. It was not stated that the [V]eteran did not have coronary artery disease (CAD) as it cannot be known for certain without the cardiac cath. However, there is no mention of ischemia and it is assumed that if the cardiologist felt that the [V]eteran had ischemia, he would have recommended the cardiac cath. The [V]eteran has had subsequent testing with similar findings but has not ever had a cardiac catheterization to know for certain if CAD is present. It must be pointed out that “suggested” perfusion abnormality and “possible” myocardial infarction are not objective evidence of CAD or ischemic heart disease. The report of the CT chest is somewhat unclear as the aorta is not a coronary artery however, in any case coronary calcifications do not necessarily indicate coronary stenosis or ischemia. The [V]eteran has done quite well from a cardiac standpoint in the six years since his original stress test—there is no evidence of myocardial infarction or heart failure. There is no objective evidence of significant CAD. **4. Actual exercise tolerance is decreased due to COPD—it is acknowledged that the [V]eteran does have significant symptoms and disability due to lung disease. The evidence of record does not show that the Veteran’s ischemic heart disease with ischemic cardiomyopathy manifested as more than one episode of acute congestive heart failure; 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 during the period from October 1, 2014, through June 6, 2016. Accordingly, the Board concludes that the Veteran’s ischemic heart disease with ischemic cardiomyopathy does not warrant a rating in excess of 30 percent for the period from October 1, 2014, through June 6, 2016. From June 6, 2016, through July 28, 2016 The relevant evidence on file consists of a July 2016 VA examination which noted the results of a June 6, 2016 echocardiogram. The examiner indicated the results were as follows: “A. Normal size left ventricle with mildly depressed systolic function. EF is calculated at 39 [percent]. Concentric LVH, which is seen in hypertension. Grade I diastolic dysfunction consistent with impaired relaxation. B. Mild MR by Doppler study. C. Trace TR by Doppler study.” The evidence of record does not show that the Veteran’s ischemic heart disease with ischemic cardiomyopathy manifested as 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 during the period from June 6, 2016, through July 28, 2016. The 60 percent rating assigned during this period contemplates the Veteran’s left ventricular dysfunction with an ejection fraction of 39 percent. Accordingly, the Board concludes that the Veteran’s ischemic heart disease with ischemic cardiomyopathy does not warrant a rating in excess of 60 percent for the period from June 6, 2016, through July 28, 2016. REASONS FOR REMAND Respiratory Disorder In July 2020, the RO requested a VA opinion regarding whether the Veteran’s respiratory disorder, to include COPD, is at least as likely as not (50 percent or greater probability) proximately due to or the result of ischemic cardiomyopathy and/or diabetes mellitus type II with hypertension. In response, an August 2020 VA examiner opined, After review of available VBMS, STRs and CPRS records[,] it is the opinion of this examiner that [the] Veteran’s COPD is less likely as not related to diabetes or ischemic heart disease since these are two separate and distinct medical conditions. One condition does not cause or have effect on the other. The Board finds this opinion inadequate. The examiner failed to address the issue of aggravation as part of the secondary service connection discussion. Furthermore, the examiner failed to address the Veteran’s other diagnosed respiratory disorder of chronic bronchiectasis in this regard. On remand, a new opinion must be obtained. TDIU Finally, the TDIU appeal is inextricably intertwined with the other issues on appeal. On remand, the intertwined issue of entitlement to a TDIU must be adjudicated. The matters are REMANDED for the following action: 1. Forward the claims file to a VA physician to obtain an opinion regarding whether the Veteran’s respiratory disorder, to include COPD and chronic bronchiectasis, is proximately caused or aggravated by his service-connected ischemic heart disease with ischemic cardiomyopathy and/or diabetes mellitus type II with hypertension. A rationale must be provided for all opinions. If the examiner cannot provide an opinion, the examiner must indicate why. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.