Citation Nr: 21066226 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 14-35 198A DATE: October 29, 2021 ORDER Entitlement to a rating in excess of 10 percent for coronary arteriosclerosis status post myocardial infarction for the period prior to November 6, 2018 is denied. FINDING OF FACT During the period prior to November 6, 2018, the Veteran's coronary arteriosclerosis status post myocardial infarction was characterized by LVEF of 55 to 60 percent and dyspnea at 7 to 10 METs. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for coronary arteriosclerosis status post myocardial infarction for the period prior to November 6, 2018 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a January 2018 hearing. The transcript of the hearing is of record. An October 2020 Board decision denied increased ratings for the Veteran's coronary arteriosclerosis and allergic rhinitis, granted increased ratings for right and left foot gouty arthritis, and remanded the issues of increased ratings for sinusitis and entitlement to a total disability rating based on unemployability (TDIU). The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a May 2021 Joint Motion for Partial Remand (JMPR), asking that the October 2020 Board decision be vacated only as it pertained to a rating in excess of 10 percent for coronary arteriosclerosis for the period prior to November 6, 2018. In May 2021, the Court granted the JMPR and remanded the issue on appeal for readjudication in accordance with instructions set out in the JMPR. 1. Entitlement to a rating in excess of 10 percent for coronary arteriosclerosis status post myocardial infarction for the period prior to November 6, 2018 The Veteran contends that he is entitled to an increased rating for coronary arteriosclerosis, which is rated at 10 percent disabling prior to November 6, 2018. For the reasons that follow, the Board finds that an increased rating is not warranted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran's heart disability has been rated under Diagnostic Code (DC) 7005, which rates arteriosclerotic heart disease. Under the DC, a 10 percent rating is warranted for documented coronary artery disease (CAD) resulting in a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent rating is warranted for CAD where 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. A 60 percent rating is warranted for CAD where 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 (LVEF) of 30 to 50 percent. A 100 percent rating is warranted for CAD resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent. A December 2011 VA examination did not diagnose ischemic heart disease. The examiner opined that the Veteran did not suffer from coronary artery disease/ischemic heart disease. The examiner noted that METs were at 1-3 but found that the Veteran's METs limitations were not cardiac in origin but instead due to his chronic obstructive lung disease, obesity, and deconditioning. He examiner also noted that there was no confirmed history of myocardial infarction and that the Veteran had a history of extensive cardiac evaluations without a confirmed diagnosis of ischemic heart disease. The examiner specifically stated that the recent echocardiogram showed no dilation, hypertrophy, or diminishment in LVEF and no wall motion abnormalities, and also noted that a myocardial perfusion scan had been performed at the Veteran's request and failed to reveal either evidence of a prior infarction or ongoing ischemia. A March 2013 VA examination also found that the Veteran did not have ischemic heart disease. In a review of the Veteran's medical history, the examiner noted a 1972 VA examination diagnosing coronary arteriosclerosis but stated that there was no other documentation of a diagnosis of coronary artery disease, and while the Veteran reported that he carried nitroglycerin tablets in the 1980s he was not currently on any cardio-protective drugs. The examiner further explained that the Veteran had history of abnormal baseline EKG and 2005 stress testing showed no discernible shifts from the baseline during the test. The examiner then observed that these were the same baseline findings as on a 1993 test when no ischemia was found and also noted a normal December 2011 nuclear heart scan. The examiner also found that the Veteran had not had a myocardial infarction. Regarding this finding, the examiner stated that EKGs can show changes consistent with, but not diagnostic of, prior infarcts, but that this kind of finding had not been seen on the Veteran's EKGs over the years "as a true infarct would usually be." The examiner also found that the Veteran did not have either congestive heart failure or evidence of cardiac hypertrophy or dilatation. The examiner stated that the March 2013 echocardiogram showed LVEF of 55 to 60 percent with normal wall motion and thickness. Interview-based METs testing found dyspnea at 7 to 10 METs. The provider did not complete the question regarding whether this METs level was solely due to the heart disability but opined that it was unclear whether the Veteran had arteriosclerotic heart disease based on extensive record review. VA treatment records show treatment for dyspnea and shortness of breath during the period. March 2017 records noted shortness of breath after walking 150 feet, noting that the Veteran could walk twice as far the prior year. The provider also noted intermittent ankle swelling. The provider found dyspnea of unclear etiology, noting that the Veteran did not mention chronic dyspnea or cough at his last visit only a few weeks prior. The provider ordered an echocardiogram and advised the Veteran to continue his inhalers. Subsequent March 2017 records noted a chronic intermittent cough secondary to asthma, that an echocardiogram was performed, and that the Veteran was contacted to discuss test results regarding dyspnea evaluation. The records show that PFTs showed obstruction and there were suspicious findings in the lungs. June 2017 records stated that the echocardiogram showed ejection fraction within normal limits with no significant valvular disorder. The provider noted that dyspnea had improved but continued to note dyspnea of unclear etiology, indicating that PFTs showed mild to moderate obstruction/restriction. The provider advised the Veteran to continue inhalers, noting ongoing dyspnea and cough, though improved. August 2017 records noted that the Veteran had no shortness of breath except during asthma exacerbations. October 2017 records show ongoing reports of dyspnea and cough. The provider noted some degree of COPD and the restriction shown on the PFT results. The provider again noted the normal echocardiogram results and re-ordered a chest CT, noting that cough was still present but likely a component of UAC/post-nasal drip/GERD. Additional October 2017 records noted that chronic cough was worse but there was no acute COPD exacerbation, and the cough may be due to GERD. November 2017 records noted that the Veteran did not report chest pain, wheezing, cough, or shortness of breath. Additional November 2017 records noted the Veteran's reports that his shortness of breath and cough had improved after stopping two of his medications (allopurinol and Elavil). The provider advised him that this was likely a coincidence but noted that dyspnea and cough had both improved after starting Reglan, and that the issue may have been reflux. The provider again noted the normal echocardiogram and lack of valvular disorder and the Veteran was instructed to continue his treatment for GERD and his inhalers. Subsequent November 2017 records show that the Veteran denied chest pain and shortness of breath. March 2018 records stated "dyspnea/cough- improved. Reflux." The provider then noted PFTs likely mixed obstruction/restriction, grade of which are likely mild to moderate, and noted that the lung restriction was likely due to body habitus. The provider again noted the normal echocardiogram and lack of valvular disorder and the Veteran was instructed to continue his GERD treatment and inhalers. Subsequent March 2018 records noted that there was no chest pain, shortness of breath or cough, and April 2018 records noted that there was no chest pain or palpitations, and the Veteran did not report shortness of breath or cough. Additional April 2018 records again noted that there was no dyspnea and the provider noted chronic intermittent cough secondary to asthma. June 2018 and September 2018 records show that the Veteran denied chest pain and shortness of breath. October 2018 records show that the Veteran sought ER treatment for shortness of breath. The provider noted wheezing and decreased air movement on examination, treated the Veteran with nebulized bronchodilators and obtained a CT as well as an EKG. The EKG showed no clear ischemia. The provider noted that air movement improved significantly after treatment with nebulizers and cough was decreased. The CT showed infiltrate in the lower lungs. The provider diagnosed bronchitis, diarrhea and abdominal pain and prescribed antibiotics to treat the bronchitis. The provider noted sinus congestion and the possibility of bronchitis. Subsequent October 2018 records noted the ER visit and stated that cough and wheezing had improved, though the Veteran still had reflux symptoms. The provider recorded an assessment of "dyspnea/cough, improved, reflux." Th provider then noted lung restriction and advised continuing treatment for GERD/UAC with inhalers and loratadine. The provider again noted the absence of significant valvular disorder. A November 2018 VA examination found that there was no congestive heart failure but that there was evidence of cardiac hypertrophy in a November 2018 echocardiogram. LVEF was 60 to 65 percent. Interview-based METs testing found dyspnea at 3 to 5 METs. The examiner noted shortness of breath with minimal exertion and the examiner found the dyspnea was due to the Veteran's cardiac disability. In responding to the question in the medical history section of the report regarding the course of the Veteran's condition since onset, the examiner indicated that it had remained the same. The examiner also noted that the condition had its onset in 1972. The examiner also opined that there had been no change in the service connected diagnosis. The Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the January 2018 Board hearing the Veteran stated that his heart disability had worsened since 2013 and his shortness of breath had increased. The Board notes that the Veteran is competent to report lay observable symptoms such as shortness of breath and accords his statements significant weight. Moreover, the undersigned has had the opportunity to observe the Veteran and finds him to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Again, the Veteran's heart disability is rated at 10 percent for the period prior to November 6, 2018. To warrant a 30 percent rating, the evidence would need to show that 5 to 7 METs resulted in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The Board finds that the competent evidence from the period prior to November 6, 2018 does not support the conclusion that the Veteran's heart disability more closely approximated the severity a higher rating. The December 2011 examiner found that the Veteran did not have a cardiac disability and stated that METs limitations were not cardiac in origin but due to lung disabilities, obesity, and deconditioning. The March 2013 examiner also found no evidence of a heart disability, provided an extensive explanation of the history of EKG and echocardiogram results to support this finding, and opined that it was unclear whether the Veteran actually had arteriosclerotic heart disease. The examiner did find some shortness of breath in interview-based METs testing, with dyspnea at 7 to 10 METs. Neither examiner found cardiac hypertrophy or cardiac dilatation. These symptoms are encompassed by the 10 percent rating already assigned. VA treatment records from the period are silent for an assessment of METs levels, a diagnosis of cardiac hypertrophy or a diagnosis of cardiac dilatation, and EKG results from the period did not show significant ischemia. At the January 2018 hearing, the Veteran reported increased shortness of breath but did not report other symptoms or any specific level of activity associated with his shortness of breath. VA treatment records from the period also do not show symptoms of dyspnea associated with a cardiac disability. VA treatment records from 2017 to 2018 did show evaluations for worsening dyspnea after the Veteran reported in March 2017 that he had shortness of breath after walking 150 feet. The record indicates that these were new symptoms, as the provider specifically stated that the Veteran did not have the complaints a few weeks prior and noted that the Veteran could walk twice as far the prior year. The provider stated that the etiology was unclear, and continued to record an unclear etiology in June 2017, though the provider did note that an echocardiogram showed ejection fraction within normal limits with no significant valvular disorder and PFTs showed restriction. Subsequent records, however, indicate that indicate that, after further evaluation and treatment, the Veteran's symptoms were attributed to noncardiac causes and treated accordingly. August 2017 records noted no shortness of breath except during asthma exacerbations, and in October 2017 the provider noted that the cough may be due to GERD. Records show that in order to treat the symptoms, the provider prescribed GERD medication, along with inhalers, and the Veteran reported improvement. In March 2018 the provider recorded an impression of "dyspnea/cough- improved. Reflux." Notably, providers continued to cite the normal cardiac test results throughout the evaluations for dyspnea. The treatment records therefore show that while the etiology of the dyspnea the Veteran reported in 2017 and 2018 was initially found to be unclear, after further evaluation his providers found that it was due to GERD and the lung disability. The Board notes that the November 2018 examiner found dyspnea that was solely due to the Veteran's cardiac condition and has therefore considered whether such dyspnea was present during the period prior to November 6, 2018. However, the Board finds that the rest of the evidence from the period is against finding that the Veteran's had cardiac-related dyspnea symptoms. Both of the VA examinations from the period found no cardiac disability. VA treatment records, as described in detail above, indicate that after evaluation the Veteran's dyspnea during the earlier period was found to be associated with GERD and the Veteran's lung disability, and that it was treated accordingly with reports of improvement in symptoms. Notably, October 2018 VA treatment records, only one month prior to the November 2018 examination, reiterated those findings and recorded an assessment of "dyspnea/cough, improved, reflux. Lung restriction, continue tx for GERD/UAC with inhalers, loratadine." Thus, the evidence does not show that during the period prior to November 6, 2018, the Veteran had dyspnea associated with cardiac disability at a level that would support a higher rating. The Board acknowledges that the November 2018 examiner found that the course of the Veteran's disability was unchanged since onset in 1972. However, this opinion is inconsistent with the other evidence of record. The November 2018 examiner found METs levels of dyspnea at 3 to 5 METs, but the 2011 examination found that that the Veteran did not have any cardiac-related METs limitations, and the 2013 examiner found dyspnea, but at 7 to 10 METs, not 3 to 5. The November 2018 examiner was therefore finding a substantially higher level of METs limitations than previously documented. The November 2018 examiner also found evidence of cardiac hypertrophy, while the March 2013 examiner specifically noted that there was no evidence of cardiac hypertrophy or dilatation. Given these significant differences, the basis of the November 2018 examiner's opinion that the disability was unchanged is unclear. The opinion is also inconsistent with the Veteran's testimony at the January 2018 hearing, when he stated that his symptoms had worsened since the March 2013 examination. The November 2018 examiner did not reconcile the opinion regarding the stability of the Veteran's symptoms with the contradictory evidence of record from the period, or indeed provide any explanation or discussion of the Veteran's prior test results, examinations, or treatment records, in contrast to the extensive record review and explanation provided by the March 2013 examiner. The Board therefore assigns less weight to November 2018 opinion regarding whether the Veteran's disability had worsened than to the other evidence of record from the period and finds that the November 2018 opinion is insufficient to support the conclusion that the cardiac-related METs limitations recorded at that examination were present during the earlier period. Again, VA treatment records only one month prior instead attributed the Veteran's dyspnea symptoms to GERD and a lung disability and treated them in accordance with that diagnosis. The competent evidence of record from the period is therefore against finding that the Veteran had dyspnea or other symptoms at 5 to 7 METs or less, and the record from the period is also silent for evidence of cardiac hypertrophy or cardiac dilatation. In addition, while the Veteran is competent to report his symptoms, as a layperson he is not competent to opine upon a complex medical question such as an assessment of METs levels. Therefore, there is simply no basis upon which the Board can conclude that the Veteran had dyspnea at 5 to 7 METs, cardiac hypertrophy or cardiac dilatation during the period prior to November 6, 2018. As such, the criteria for a 30 percent rating are not met or approximated. The Board has also considered whether a 60 or 100 percent rating is warranted for the period. However as noted above there is no evidence of the required METs levels for those ratings during the period. There is also no indication of LVEF less than 50 percent or congestive heart failure. A rating of 60 or 100 percent is therefore also not warranted for the period prior to November 6, 2018. Because arteriosclerotic heart disease is specifically listed in the rating schedule, it may not be rated by analogy under a different DC. Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). Therefore, no other DCs are potentially applicable which might afford a higher rating on an alternative basis. The preponderance of the evidence is against a rating above 10 percent for coronary arteriosclerosis during the period prior to November 6, 2018. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.