Citation Nr: 21004518 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-61 140 DATE: January 27, 2021 ORDER Entitlement to a rating of 100 percent disabling for coronary artery disease is granted. Entitlement to service connection for a lung disability is denied. Entitlement to Special Monthly Compensation (SMC) under the provisions of 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. Throughout the appeal, metabolic equivalent (MET) testing shows the Veteran develops dyspnea, fatigue, angina, dizziness, or syncope at a workload of 3 METs or less, and the evidence shows chronic congestive heart failure. 2. The preponderance of the evidence of record is against finding that the Veteran has had a lung disability at any time during or approximate to the pendency of the claim. 3. Pursuant to this decision, the Veteran’s coronary artery disease is rated as total and his remaining service-connected disabilities have a combined rating of at least 60 percent disabling throughout the appeal. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for a rating of 100 percent for coronary artery disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code (DC) 7005. 2. The criteria for service connection for a lung condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Throughout the appeal period, the criteria for entitlement to SMC under the provisions of 38 U.S.C. § 1114(s) have been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(1) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1968 to September 1970, including service in the Republic of Vietnam. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 60 percent disabling for coronary artery disease The Veteran’s coronary artery disease is rated as 60 percent disabling under DC 7005 for arteriosclerotic heart disease. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Under DC 7005, a 60 percent rating is warranted for more than one episode of acute congestive heart failure (CHF) in the past year, or; when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic CHF, 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. 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. 38 C.F.R. § 4.104, Note (2). A May 2017 VA examination diagnosed the Veteran with CHF and coronary artery bypass, status post myocardial infarction and percutaneous transluminal coronary angioplasty and stent. The examiner did not diagnose the Veteran with chronic CHF. The examiner stated that the interview-based METs test most accurately reflects the Veteran’s cardiac functional level in comparison with his exercise stress test and/or ejection fraction. The interview-based METs test showed dyspnea, fatigue, angina, and dizziness at an activity level of 1-3 METs. A February 2018 VA examination report diagnosed the veteran with chronic CHF. An exercise stress test was not performed, the interview-based METS test showed the Veteran experiences dyspnea and fatigue at an activity level of 3-5 METs. The examiner stated that the Veteran’s ejection function of 30 percent is the best indicator of his cardiac function. A July 2018 private Disability Benefits Questionnaire (DBQ) diagnosed the veteran with chronic CHF. An October 2018 VA examination interview-based METs test showed dyspnea and fatigue at an activity level of 1-3 METs. An exercise stress test was not performed, and the Veteran’s ejection fraction was 37 percent. The examiner noted that the Veteran's cardiac condition impacts all standing and ambulation beyond the minimum needed to get to the car or kitchen. To establish entitlement for a 100 percent rating for coronary artery disease, the evidence must establish that the Veteran had chronic congestive heart failure; or a workload of 3 METs or less resulted in dyspnea, fatigue, angina, dizziness, or syncope; or there was an LVEF of less than 30 percent. The May 2017 VA examination showed dyspnea, fatigue, angina, and dizziness at an activity level of 1-3 METs; the February 2018 VA examination and July 2018 private DBQ showed that the Veteran has chronic CHF; and the October 2018 VA examination interview-based METs test showed dyspnea and fatigue at an activity level of 1-3 METs. Considering the numerous examinations in the light most favorable to the Veteran, the evidence of record shows that these criteria were consistently met during the period on appeal, albeit in varying form. Considering the foregoing, a 100 percent disability rating is warranted for the Veteran's coronary artery disease throughout the appeal period. In this case, the Board has awarded the 100 percent rating for the Veteran’s heart disability from the January 31, 2017, date of the claim. The Board has now considered whether any worsening of the disability within one year prior to the claim warranted an increased rating. However, the Board finds no evidence making it factually ascertainable that the Veteran's heart disability underwent an increase in severity to meet the criteria for a separate compensable rating on any identifiable date within a year prior to the January 31, 2017, date of claim. 2. Entitlement to service connection for a lung disability The Veteran contends that service connection is warranted for a lung disability. See January 2017 Fully Developed Claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a nexus or causal relationship between the claimed disability and the disease, injury, or event in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Decisions of the Board shall consider all information and lay and medical evidence of record in a case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1).  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55(1990).  Although August and November 2015 CT imaging showed solid/cystic lesions, mild to moderate emphysema, and nodular opacities, the August 2015 physician stated that it could be infectious given prior radiographic evidence of bronchiectases versus malignancy and prescribed 10-day course of Levaquin. January 2017 imaging showed the Veteran had clear lungs with no acute disease. October 2020 VA treatment records show his lungs are clear to auscultation. In a January 2021 Appellate Brief, the Veteran’s representative stated that VA Medical Center records indicate that the Veteran receives annual CT checks of his lungs at an outside facility. October 2020 VA treatment records note “annual CT” at an outside facility being the reason the Veteran declined a VA chest CT. Some private CT information, including information from a November 2015 CT, is already of record. In addition, the record contains private chest imaging from January 2017. The Veteran was requested in a May 2017 letter to provide releases for relevant private treatment related to his claim and he has done so throughout the appeal. The record does not show, nor does the Veteran contend, that a lung disability diagnosis has been rendered, or that the Veteran has recurrent or persistent symptoms of a lung disability. Accordingly, the Board finds its duty to assist in this regard has been met. To the extent that VA examinations have shown dyspnea, pursuant to the above, the Veteran is in receipt of a 100 percent rating for his coronary artery disease and, as such, is already service connected for this symptom. The Board notes it cannot "pyramid," or issue separate evaluations for two or more disabilities with duplicative or overlapping symptoms. 38 C.F.R. § 4.14. The Board concludes that the Veteran does not have any current lung disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of a current disability, service connection is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a lung disability; therefore, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to SMC under the provisions of 38 U.S.C. § 1114(s) is granted. SMC is payable where a veteran has a single service-connected disability rated as 100 percent disabling and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i)(1). The Board observes that the Veteran was granted entitlement to SMC on account of esophageal cancer (claimed as esophageal cancer, residuals of), rated 100 percent and additional service-connected disability of coronary artery disease, independently ratable at 60 percent or more from May 9, 2008 to December 1, 2008. Pursuant to the above decision, the Veteran’s coronary artery disease is now rated as 100 percent disabling. Further, the Veteran’s remaining service-connected disabilities have had a combined rating of at least 60 percent disabling for the period on appeal.   Accordingly, from January 31, 2017, the criteria for entitlement to SMC under 38 C.F.R. § 3.350 (i)(1) have been met. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.