Citation Nr: 21066502 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-20 801 DATE: November 1, 2021 ORDER 1. Entitlement to an effective date prior to August 4, 2016, for the award of service connection for coronary artery disease (CAD) is denied. 2. Entitlement to an initial disability rating in excess of 60 percent for CAD prior to April 13, 2021, is denied. FINDINGS OF FACT 1. Although the Veteran initially filed a claim for entitlement to service connection for ischemic heart disease (IHD) in a Veteran's Supplemental Claim for Compensation form (VA Form 21-526b), which was received by VA on April 26, 2011, entitlement to service connection did not arise until August 4, 2016, as the evidence does not show that the Veteran had CAD prior to this later date. 2. Prior to April 13, 2021, the Veteran's CAD symptoms did not manifest with chronic congestive heart failure, or; workload of 3 metabolic equivalent of tasks (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular (LV) dysfunction with an ejection fraction (EF) of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to August 4, 2016, for the award of service connection for CAD have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 2. The criteria for an initial disability rating in excess of 60 percent for CAD prior to April 13, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 1962 to June 1985. This case was previously before the Board in May 2020 and October 2020, at which times, the Board remanded the matters on appeal, as well as the Veteran's claim for entitlement to service connection for carotid blockage, status-post endarterectomy for additional development. Specifically, the service connection claim for a carotid blockage was remanded for an adequate VA medical opinion, and the matters on appeal were remanded as they were inextricably intertwined with the service connection claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The record shows that in an August 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for carotid artery stenosis, right side blockage, status-post right carotid endarterectomy as secondary to service-connected hypertension and assigned an initial, noncompensable disability rating since April 26, 2011. Thereafter, the AOJ readjudicated the earlier effective date and increased rating claims on appeal. There was substantial compliance with the Board's May 2020 and October 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2021 rating decision, the AOJ granted a 100 percent disability rating for CAD, effective April 13, 2021. Thus, the Board has recharacterized the claim for an increased rating for this disability as it appears on the first page of this decision, as the Veteran is at the maximum rating as of April 13, 2021. 1. Earlier Effective Date for the Award of Service Connection for CAD The Veteran is seeking an effective date earlier than August 4, 2016, for the grant of service connection for CAD. Specifically, in numerous statements throughout the appeal, including in December 2020, the Veteran and his attorney asserted that the effective date for the grant of service connection for CAD should be from when the Veteran initially filed a claim for service connection for IHD on April 26, 2011. They contend that the claim was pending since that time until VA granted service connection for this disability in a June 2018 rating decision and assigned an effective date of August 4, 2016. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran and his attorney assert that the effective date for service connection for CAD should be earlier than August 4, 2016, because the Veteran initially filed a claim for service connection for IHD on April 26, 2011, as due to Agent Orange exposure, and his claim for treatment for his heart has been ongoing since that time. As explained in more detail below, while the Veteran filed a service-connection claim for IHD in April 2011, the preponderance of the evidence is against a finding that entitlement to service connection for CAD arose prior to August 4, 2016, at which time, the Veteran was treated for a myocardial infarction and diagnosed with CAD. Veterans exposed to Agent Orange or other listed herbicides in service are presumed service-connected for certain diseases, including IHD, even if there is no record of such disease during service. 38 U.S.C.. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). For VA purposes, IHD associated with herbicide exposure includes myocardial infarction, atherosclerotic cardiovascular disease including CAD (including coronary spasm) and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina. 38 C.F.R. § 3.309(e). Presumed exposure to an herbicide applies for a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam or other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. The record shows that the Veteran initially filed a formal claim on a VA Form 21 526b for entitlement to service connection for IHD that was received by VA on April 26, 2011, which was claimed as being due to in-service exposure to tactical herbicides and/or Agent Orange. The Veteran also filed a claim for service connection for carotid artery blockage and bypass surgery on the same date on a Statement in Support of Claim (VA Form 21-4138), as well as several other service-connection claims. In connection with these claims, the Veteran submitted an IHD Disability Benefits Questionnaire (DBQ) in April 2011 by Dr. Thomas Cerato, which showed that the Veteran was diagnosed with several cardiovascular disorders in March 2009, including hypertension and carotid stenosis, status-post endarterectomy; however, this DBQ did not show a diagnosis of CAD and/or IHD. Moreover, while various private treatment records between 2009 and 2011 from this medical provider show that the Veteran was diagnosed with and treated for atherosclerotic metabolic syndrome and carotid artery disease, including right carotid artery blockage that required surgery, the medical evidence does not show that the Veteran was diagnosed with CAD at those times. The AOJ initially denied the claim for service connection for IHD in an August 2011 rating decision, in part, because the evidence did not show that the Veteran was diagnosed with or treated for a disorder or disease that could be considered IHD, including CAD. Thereafter, the Veteran filed a November 2011 Notice of Disagreement (NOD), stating that he had IHD that was due to his in-service Agent Orange exposure. He made very similar contentions in a May 2016 statement. The medical and lay evidence since that time, including the July 2018 VA heart examination report, shows that the Veteran was first diagnosed with and treated for CAD on August 4, 2016. For example, May 2017 and September 2017 private treatment records show that the Veteran was status-post right coronary artery (RCA) stent placement in August 2016. A March 2017 private gastroenterology note shows the Veteran reported in that he had a heart attack in August 2016, at which time, he had a stent placed and was put on clopidogrel medication. The Veteran made similar contentions, namely, that he had a heart attack, a stent was placed in the RCA, and he had IHD in an April 2017 statement. In the June 2019 NOD, which disagreed with the August 4, 2016, effective date assigned for service connection in the June 2018 rating decision, the Veteran's attorney noted that the Veteran "has been suffering from his heart condition prior to August 4, 2016." However, the attorney was referring to the Veteran's carotid artery disease, rather than his CAD. In fact, the attorney noted that April 2009 treatment records document that the Veteran had carotid artery surgery. The attorney further asserted that if the Veteran's carotid artery disease was determined to not be separate from his CAD, VA should evaluate the carotid artery disease as part of CAD and assign an effective date prior to August 4, 2016. The Veteran's attorney further asserted that the earlier effective date for the grant of service connection for CAD was inextricably intertwined with the claim of entitlement to service connection for residuals of carotid artery surgery in statement associated with the March 2020 Substantive Appeal to the Board (VA Form 9, Appeal to the Board). Furthermore, a December 2019 VA heart examination showed that the Veteran was diagnosed with acute, subacute, or old myocardial infarction in 2016. The Veteran reported that he was diagnosed with hypertension, diabetes mellitus type II, and IHD in 2003 at a Houston, Texas, VA treatment facility during an evaluation for Agent Orange. He further reported that he did not have any treatment for heart disease until he went to urgent care in Austin, Texas, where he was diagnosed with an acute myocardial infarction. Following the Board's May 2020 remand instructions, the June 2020 VA examiner was requested to provide an opinion, in pertinent part, whether the Veteran's carotid artery condition was a separate disability with a distinct etiology or whether it is a manifestation of the Veteran's CAD. Following a review of the Veteran's records, the examiner determined that the Veteran's carotid artery disease was a separate diagnosis from his CAD, although the examiner noted they share similar risk factors. The examiner explained that it was accepted medical knowledge and practice that one disease does not cause the other in either direction. The examiner further opined that it was less likely than not that the carotid artery disease was aggravated beyond its natural course by the Veteran's CAD. The examiner reiterated that CAD and carotid disease are independent of each other in that one does not impact the other, although the examiner noted they share common risk factors. In an October 2020 medical opinion, a private medical provider opined that the Veteran's carotid arterial disease is at least as likely as not (greater than 50 percent) related to his exposure to toxic chemicals found in Agent Orange while serving in Vietnam. In providing this opinion, this medical professional noted that the Veteran has been granted service connection for IHD due to significant CAD, which is a result of build-up of fats, cholesterol, and other substances in and on the atrial walls (plaque), which restricts blood flow (atherosclerosis). The medical provider further noted that atherosclerosis affects every artery in the body and, as in the Veteran's case, has resulted in diminished blood flow to his carotid arteries, a major factor for stroke and death. Similar to the assertions noted in the June 2019 NOD, the Veteran's attorney asserted in a December 2020 statement that the earliest effective date for CAD should be applied if VA determines that the Veteran qualifies for an increased rating or a separate rating for carotid artery residuals. The attorney noted that the Veteran was diagnosed with right internal carotid artery stenosis in April 2009, was provided with a carotid endarterectomy at that time, and his claim for treatment of his heart has been ongoing. After a thorough review of the record, the Board determines that entitlement to an effective date prior to August 4, 2016, for the award of service connection for CAD is not warranted. The Board acknowledges the contentions made by the Veteran and his attorney that the Veteran filed a claim for service connection for IHD on April 26, 2011, and the Veteran's several lay statements that he had IHD prior to August 2016, including in the December 2019 VA examination report, when he reported that he was diagnosed with IHD in 2003. However, an effective date prior to August 4, 2016, is not warranted under the regulations governing effective dates. The effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later under 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Here, the preponderance of the evidence is against a finding that entitlement arose prior to August 4, 2016, as the Veteran's CAD did not manifest prior to this date. Specifically, the Veteran has been treated for atherosclerotic metabolic syndrome and carotid artery disease, including right carotid artery blockage that required surgery in April 2009. However, the June 2020 VA examiner opined that that the Veteran's carotid artery disease is distinct and separate from his CAD, which does not cause or is caused by his carotid artery disease. Furthermore, the October 2020 private medical opinion does not contradict the June 2020 VA examiner's opinion that the two diseases are separate and distinct. The Board notes that service connection for the Veteran's carotid artery stenosis, right side blockage, status-post right carotid endarterectomy was granted in an August 2021 rating decision, effective April 26, 2011, and assigned a noncompensable disability rating since that time. Thus, as noted in the June 2019 NOD and the December 2020 statement, any symptoms associated with the carotid artery disease prior to August 4, 2016, are contemplated by that separate disability rating. Given that the Veteran's CAD did not manifest until August 4, 2016, the Board finds that the preponderance of the evidence is against entitlement to an earlier effective date for the award of service connection for such disability. Although the Veteran filed a claim for service connection on April 26, 2011, the AOJ assigned the earliest effective date possible for CAD, which was from the date that entitlement arose on August 4, 2016, when he experienced a myocardial infarction and was diagnosed and treated for CAD. Accordingly, the claim of entitlement to an effective date prior to August 4, 2016, for the award of service connection for CAD is denied. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155(a), 3.400; 38 C.F.R. § 3.155(a) (2011). 2. Increased Rating for CAD The Veteran contends that his CAD should be rated higher than the currently-assigned disability rating of 60 percent prior to April 13, 2021. VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. See 38 C.F.R. § 4.14 (2017). In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." The Veteran appealed the initially-assigned rating for this disability, and, as noted above, the AOJ has assigned the maximum rating for this disability since April 13, 2021. Thus, the appeal period stems from August 4, 2016, until April 12, 2021. During the appeal period, the Veteran's CAD was rated as 60 percent disabling under DC 7005 for arteriosclerotic heart disease (coronary artery disease). 38 C.F.R. § 4.104, DC 7005. DC 7005 provides for a 60 percent disability rating when there is more than one episode of acute, congestive heart failure 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 LV dysfunction with an EF of 30 to 50 percent. A maximum schedular disability rating of 100 percent is warranted for chronic congestive heart failure, or; when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is LV dysfunction with an EF of less than 30 percent. One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination 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. Id. An August 2016 private oncology note showed that the Veteran had a past medical history of CAD, status-post myocardial infarction with a stent placed in August 2016. He reported that he has been doing well since the coronary artery stenting. A March 2017 private gastroenterology note showed that a review of the Veteran's cardiovascular system indicated that he denied any chest pain/pressure, palpitations, swelling in feet/ankles, or leg cramps with exercise. In an April 2017 statement, the Veteran asserted that he previously had a heart attack and that a stent was placed in the RCA. A September 2017 private treatment record also noted that the Veteran had a coronary artery stent placement in August 2016. The Veteran underwent a VA examination for his heart in July 2018, which showed that he was diagnosed with CAD and a junctional rhythm ST and T wave abnormality on an electrocardiogram (ECG). He described to the examiner that in the past year, he had easy fatigability/easily gets tired, and had occasional dizziness during activities. He took all of his prescribed medications for the heart disability and denied any recent emergency room visits or hospitalizations. The examiner noted that the Veteran used lisinopril, aspirin, omega fish oil, and clopidogrel medications on a daily basis. The examiner noted that the Veteran has never had congestive heart failure (CHF). The examiner documented the Veteran also did not have a cardiac arrythmia or a heart valve disorder. The examiner noted that the Veteran had a heart attack with one stent placement in the RCA on August 4, 2016. The examiner further noted that the Veteran had a calculated LVEF of 58 percent with normal wall motion. The resting ejection fraction was 65 percent. The examiner documented that exercise stress testing was not required as part of the Veteran's current treatment plan and that this test was not without significant risk. The examiner explained that the Veteran' interview-based METs test showed that the Veteran had fatigue. The examiner concluded the Veteran had greater than 3 METs but less than 5 METs. A December 2019 VA examination report showed that the Veteran was diagnosed with CAD and an acute myocardial infarction from 2016. The Veteran reported that his current symptoms included daily fatigue that limited his physical activity. He reported no chest pain and infrequent shortness of breath with exertion. He also told the examiner that he took care of his home, shopped, and performed activities of daily living without assistance. He was noted to be taking lisinopril, amlodipine, asprin, and Plavix medication. The examiner wrote that the Veteran had not had CHF, and that he did not have cardiac arrhythmia or a heart valve condition. A physical examination showed a heart rate of 84, regular heart rhythm and sounds, and normal dorsal pedis peripheral pulses but diminished posterior tibial peripheral pulses. His lower extremities did not have edema. An echocardiogram showed the presence of cardiac hypertrophy and an LVEF of 55 percent. An interview-based test showed that the Veteran had fatigability and greater than 3 METs and less than 5 METs. The examiner noted that the Veteran's LVEF was the most objective reflection of the current cardiac status. A December 2020 private treatment record showed that a physical evaluation of the cardiovascular system showed no palpations or chest pain. In a January 2021 echocardiogram report, the medical professional concluded that the Veteran had an appropriate ejection fraction of 60 percent, which met the criteria of normal diastolic function, which was from 55 percent to 60 percent. Trace mitral regurgitation was noted amongst the mitral valve and was noted as a mild finding at that time but would need to be intervened if it deteriorated. The electrocardiograph (EKG) showed no abnormalities. The medical professional noted that the Veteran had overall normal ECG and EKG. Given this evidence, the Board finds that from August 4, 2016, to April 12, 2021, the Veteran's heart disability symptoms did not manifest with chronic CHF, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LV dysfunction with EF of less than 30 percent. Specifically, the July 2018 and December 2019 VA examination reports both showed that the Veteran has not had acute or chronic CHF in the past. Furthermore, although he has had fatigue due to his CAD, both examination reports showed that he had greater than 3 METs but less than 5 METs, and that the LVEF was greater than 50 percent on both examinations. Moreover, the January 2021 echocardiograph report findings also showed that the ejection fraction was above 50 percent. Thus, his heart disorder symptoms do not warrant a rating in excess of 60 percent during this appeal period. See 38 C.F.R. § 4.104, DC 7005. The record shows that the Veteran's heart symptoms worsened on April 13, 2021. Specifically, the April 2021 VA examination report showed that an interview-based METs test showed the presence of dyspnea and fatigue with the examiner concluding that the Veteran had between 1 and 3 METs. Therefore, the AOJ assigned a 100 percent disability rating for this disability from the date of this VA examination in an August 2021 rating decision. Prior to this date, the Veteran's symptoms did not rise to this level of severity. Accordingly, the preponderance of the evidence is against a finding that the Veteran's disability picture warrants an initial disability rating in excess of 60 percent for CAD prior to April 13, 2021. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim for a higher rating prior to April 13, 2021 is denied. See 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hodzic, 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.