Citation Nr: 21066598 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-60 219 DATE: November 1, 2021 ORDER Entitlement to an increased rating of 60 percent, but not higher, for service connected coronary artery disease (CAD) is granted, subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) due to service connected CAD is remanded. FINDING OF FACT The Veteran's CAD symptoms more nearly approximate a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, but do not more nearly approximate chronic congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. CONCLUSION OF LAW The criteria for an increased 60 percent rating, but not higher, for CAD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.104, Diagnostic Code (DC) 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for OSA, and increased the rating for CAD to 30 percent effective March 3, 2016. In July 2016, the Veteran filed his notice of disagreement with the denial of service connection of OSA, was issued a statement of the case in November 2016, and in December 2016 perfected his appeal to the Board. In September 2016, the Veteran appeared at a hearing before a Decision Review Officer. A transcript of the hearing is of record. In December 2016, the Veteran filed his notice of disagreement with the 30 percent evaluation for CAD, was issued a statement of the case and perfected his appeal in January 2017. The RO denied the Veteran's claims for service connection for OSA and a higher rating for CAD, notifying the Veteran in March 2017 and April 2017 supplemental statements of the case, respectively. The Veteran requested a virtual hearing with a Veterans Law Judge which was scheduled for April 19, 2021. However, in a March 2021 letter, the Veteran informed the Board that he wished to withdraw his request for a hearing. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 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. 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. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). CAD The Veteran's CAD is currently rated 30 percent disabling from March 3, 2016 under DC 7005. DC 7005 evaluates arteriosclerotic heart disease, including CAD, and assigns a 30 percent rating when workload of greater than 5 METs but not greater than 7 METs 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 rating is assigned for more than one episode of acute congestive heart failure in the past year, or; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or; when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; for left ventricular dysfunction with an ejection fraction 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. 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. Id. at Note 2. The Board notes that the evidence of record reflects that the Veteran has undergone coronary bypass surgery. However, as the rating criteria for coronary bypass surgery under DC 7017 is identical to that for DC 7005, the Board will adjudicate the Veteran's claim for a higher disability rating under DC 7005 as assigned by the RO. A May 2016 VA examination report reflects that the Veteran was recently hospitalized for heart failure due to atrial fibrillation, and on follow up was noted to have recurrence of an arrhythmia. The examiner noted that the Veteran's CAD required continuous medication and that the Veteran had congestive heart failure (CHF) which was not chronic, but the Veteran had 1 episode of acute CHF in the past year. The examination reflects that that Veteran had not had a myocardial infarction, but had a cardiac arrhythmia with constant atrial flutter. The examiner noted that the Veteran did not have a heart valve condition, had not had any infectious cardiac conditions, or pericardial adhesions, but had undergone coronary artery bypass surgery. The examination report indicated that there was no evidence of cardiac hypertrophy, but there was evidence of cardiac dilatation, and an echocardiogram reflected LVEF of 60 to 65 percent. Wall motion was normal, but wall thickness was abnormal with left and right atrium dilated. No inducible ischemia was noted, and the interview based METs test reflected dyspnea at greater than 5 to 7 METs. The examiner reported that the METs level limitation was not due solely to the heart condition, but it was not possible to accurately estimate the percent of METs limitation attributable to each medical condition as the Veteran also has joint pain and deconditioning. The examiner stated that the Veteran should avoid strenuous activities, and noted that the atrial flutter and Mobitz heart block were not caused by CAD. December 2016 VA treatment records reflect that the Veteran has not noticed his heart go out of rhythm, and was informed that his EKG showed no atrioventricular block and no flutter, with his home heart rate in the upper 50s. In a January 2017 letter, the Veteran's private physician reported that the Veteran had occasional chest pain which he described as "angina" which caused minor discomfort on most days, but once a month was bad enough to require that he take nitroglycerin. The Veteran described this pain as a dullness in his left chest which can come at rest, but is worse with exertion. The Veteran reported increased shortness of breath when walking or taking the stairs, and stated that he could not mow the lawn anymore. A February 2017 disability benefits questionnaire (DBQ) reflects that the Veteran's CAD required continuous medication, the examiner noted that the Veteran had chronic CHF with 1 episode of acute CHF in the past year, and he also had a cardiac arrhythmia, specifically intermittent atrial fibrillation, with 1 to 4 episodes in the past 12 months. The DBQ also indicated that the Veteran had intermittent atrial flutter, with 1 to 4 episodes in the past 12 months, and 2nd degree atrioventricular block. The examiner noted that the Veteran did not have a heart valve condition, any infectious cardiac conditions, and has not undergone treatment for any active infection. The DBQ reflects that the Veteran has not had a syphilitic aortic aneurysm, pericardial adhesions, but had undergone a percutaneous coronary intervention, and coronary artery bypass surgery. The Veteran reported chronic chest pain and dyspnea on exertion, there was evidence of cardiac hypertrophy, but no evidence of cardiac dilatation. The exercise stress test indicated no ischemia and 3.8 METs, while his interview based METs test reflected dyspnea, fatigue, angina, and a METs level of 1 to 3 METs. The examiner noted that the Veteran's interview based METs test most accurately reflected the Veteran's current cardiac functional level. The examiner noted atrial flutter and reported that the Veteran's dyspnea limits many of his activities. A March 2017 DBQ reflects that the Veteran reported having increased activity intolerance when he walks about 50 yards and gets short of breath with chest pain. The DBQ indicates that the Veteran's CAD requires continuous medication. The examiner noted that the Veteran has not had a myocardial infarction, but has had CHF with no episodes of acute CHF in the past year, had a cardiac arrhythmia noting intermittent atrial fibrillation with no episodes in the past 12 months, and has no heart valve condition, infectious cardiac conditions, or pericardial adhesions. The examiner reported that the Veteran had undergone a coronary artery bypass in 2004, and there was no evidence of cardiac hypertrophy or dilatation. The examiner stated that exercise stress testing was not required and was not without significant risk, but an interview based METs test revealed dyspnea and angina causing an MET level of greater than 5 to 7 METs. The examiner noted that the Veteran's METs level was due solely to his heart condition, and stated that the Veteran should avoid strenuous activity. A July 2021 VA cardiology nursing note indicates that the Veteran has a pacemaker and has been seen by a pacemaker provider in the last year. The note also reflects that the Veteran has swelling in both legs, more severe in the left leg. While the May 2016 VA examination report, February 2017 and March 2017 DBQs reflect that the Veteran had at most 1 episode of CHF within a 12 month period, and his May 2016 VA examination report and March 2017 DBQ indicate dyspnea at greater than 5 to 7 METs, his February 2017 DBQ reflects an exercise stress test of 3.8 METs, and interview based METs reflecting dyspnea, fatigue, and angina with a METs level of 1 to 3 METs. Additionally, the July 2021 VA notes reflect that the Veteran has a pacemaker, and the Veteran has reported chest pain at rest, but worse with exertion, indicating that his CAD requires continuous medication. Therefore, the evidence is at least evenly balanced as to whether the Veteran's CAD symptomatology more nearly approximates a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope as contemplated by a higher 60 percent rating under DC 7005. However, the evidence of record does not indicate that the Veteran's CAD symptomatology includes chronic congestive heart failure, as the Veteran has indicated that he has suffered, at most, 1 episode of CHF within a 12 month period. Additionally, while his February 2017 DBQ reflects an interview based METS level of 1 to 3 METS, his exercise stress test reflects 3.8 METs while his other previously mentioned examination report and DBQ reflect dyspnea of greater than 5 to 7 METs, and LVEF of 60 to 65 percent. Therefore, the Veteran's CAD symptomatology does not more nearly approximate congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or an LVEF of less than 30 percent as contemplated by a higher, 100 percent rating. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria for CAD. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board" (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). The Veteran's overall CAD disability picture thus more nearly approximates that contemplated by a 60 percent rating. Therefore, a 60 percent rating, but not higher for service connected CAD under DC 7005 is warranted. REASONS FOR REMAND OSA The Veteran's service treatment records do not note treatment for OSA, or symptomatology associated with OSA, his January 1969 medical examination report upon separation from service is normal, and his January 1969 medical history report does not indicate that the Veteran had any issues dealing with OSA. An April 2016 pulmonary sleep medicine clinic note reflects that the Veteran was found to have severe OSA. In a June 2016 VA examination report, the examiner opined that the Veteran's OSA was less likely than not (less than a 50 percent probability) proximately due to, or the result of the Veteran's service connected disability, stating that there is no evidence linking PTSD as a cause of OSA, quoting medical literature explaining the cause of OSA, and also noting that some studies have shown an increased rate of OSA in Veteran's with PTSD. The examiner ultimately concluded that there is no causative link between PTSD and OSA, and no clinical evidence that the Veteran's sleep apnea has been aggravated beyond its natural progression by his service connected PTSD. The examiner reported that associations, suggestions, and elevated risks do not rise to the level of causation that is actually needed to link a certain medical condition to a specific exposure. In July 2016, the Veteran's private physician opined that there is no medical evidence to support a connection between PTSD and OSA. In a November 2016 addendum opinion, the examiner stated that while the Veteran has OSA and CAD, the current medical literature does not suggest that PTSD or CAD specifically cause OSA, and also stated that the Veteran has the typical risk factors for developing OSA such as obesity, a large neck, and hypertension among others. The examiner opined that these other factors are the cause of his OSA, therefore his OSA is not at least as likely as not (at least a 50 percent probability) proximately due to, or the result of his CAD as the literature does not support this contention. In a December 2016 letter, the Veteran's private physician stated that severe sleep apnea has been shown to be associated with a wide range of cardiac diseases to include high blood pressure, CAD, disturbances in heart rhythm, and heart failure. She also reported that there is increasing evidence to support that treatment of OSA will help with cardiac diseases. In a March 2017 statement, the Veteran's representative reported that the Veteran's OSA has persisted since service and currently presents adverse symptomatology. Unfortunately, the Board finds that a remand is necessary for adjudication of the Veteran's claim for service connection for OSA. While the Veteran's private physician reported an association between CAD and OSA, her opinion reflected only that there is a general association between the two. She did not opine as to whether the Veteran's OSA was at least as likely as not (at least a 50 percent probability) caused or aggravated by his CAD. Therefore, a remand for an addendum opinion is necessary to allow the Veteran's private physician an opportunity to provide a specific statement regarding the etiology of the Veteran's OSA. The matter is thus REMANDED for the following action: After obtaining any necessary authorization, obtain an addendum opinion from the Veteran's private physician, Dr. Evans, who provided the December 2016 letter. The physician must opine as to whether the Veteran's OSA was at least as likely as not (at least a 50 percent probability) caused or aggravated by his service connected CAD. If aggravation is found, the baseline level of disability should be identified to the extent possible. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.