Citation Nr: 21068136 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-01 025 DATE: November 9, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for status-post coronary artery bypass grafting, previously rated as coronary artery disease, status-post myocardial infarction (heart disorder) from April 23, 2010, is denied. FINDING OF FACT From April 23, 2010, the preponderance of the evidence shows that the heart disorder was not manifested by at least more than one episode of acute congestive heart failure in the past year, a workload of less than 5 Metabolic Equivalent of Tasks (METs) resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular ejection fraction of less than 50 percent. CONCLUSION OF LAW From April 23, 2010, the criteria for a rating in excess of 30 percent for a heart disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.6, 4.104, Diagnostic Code 7016-7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from March 1969 to October 1970. In February 2020 the Veteran died. In April 2020, the regional office (RO) granted the Veteran's surviving spouse's motion for substitution. In May 2018, the Board of Veterans' Appeal (Board) remanded the appeal. In an October 2019 decision by a Veterans' Law Judge not the undersigned the Board denied the claim for a rating in excess of 10 percent for the heart disorder from November 5, 2007, to April 23, 2010, and in excess of 30 percent from April 23, 2010. The Veteran appealed the October 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 order, which incorporated the parties December 2020 Joint Motion for Remand (JMR), the Court and vacated and remanded the Board decision to the extent that it denied a rating in excess of 30 percent for the heart disorder from April 23, 2010. In May 2021, the Board Remanded the appeal. Before adjudicating the claim below, the Board finds it important to note the following: during his lifetime, the Veteran was in receipt of a 100 percent rating and Dependent's Educational Assistance at all times from November 11, 2019; the Veteran died in February 2020; and an April 2020 rating decision granted the appellant service connection for the cause of the Veteran's death and Dependent's Educational Assistance. The Concerns Raised by the JMR and Post-Remand Compliance As to the concerns raised in the JMR and post-Remand compliance, the Board finds that the post-Remand development substantially complied with both because it finds that the VA opinion obtained in June 2021 provides all needed information to rating the heart disorder under all applicable rating criteria to include explaining how the Veteran's METs estimate was arrived in accordance with Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) as directed by the JMPR. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). The Board also finds that the post-Remand development substantially complied with the Remand because all identified and available VA and private treatment records were obtained and associated with the claims file. See 38 U.S.C. § 5103A(b); Stegall, supra. Lastly, as to the concerns raised in the JMR regarding the METs score of 1 to 3 at the May 2012 VA examination and the March 2019 argument by the Veteran's representative that the January 2019 VA examiner "did not explain how he parsed out the METs for each specific service-connection and non-service-connected origin," and that this was "required by the tenets of Howell v. Nicholson, 19 Vet. App. 535, 540 (2006)," the Board notes that both concerns are addressed in detail below. Therefore, the Board finds that further delay by remanding the appeal to obtain another opinion or to obtain additional medical records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Further development or analysis does not serve the interests of the appellant or the Veterans' Administration (VA). The Rating Claim The Veteran during his life-time claimed, in substance, that he is entitled to higher ratings for his heart disorder at all times during the appeal period. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service-connected heart disorder was rated as 30 percent disabling from April 23, 2010, under 38 C.F.R. § 4.104, Diagnostic Code 7016-7005. Under Diagnostic Code 7005 (coronary artery disease), a 30 percent rating is assigned for a 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 assigned for 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 ejection fraction (LVEF) of 30 to 50 percent. A 100 percent rating is assigned for 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. Under Diagnostic Code 7016 (heart valve replacement), a 30 percent rating is warranted for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-rays. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; a 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 warranted for chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent. A 100 percent rating is also warranted for the indefinite period following date of hospital admission for valve replacement. In this regard, the Board notes that 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 MET's 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 MET's 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. With the above criteria in mind, the Board finds that the record, including the VA examinations dated in May 2012, January 2019, and June 2021, is uniform in being negative for more than one episode of acute congestive heart failure in any one year since April 23, 2010. See Owens, supra. In fact, the May 2012 VA examiner opined that the Veteran had never had acute congestive heart failure and this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Additionally, the Board finds that the most probative evidence of record shows that the Veteran's heart disorder never resulted in a METs level less than 5 because it was 5 to 7 at the January 2019 and June 2021 VA examinations solely due to his service-connected heart disorder. Id. In reaching the above conclusion the Board, as directed by the JMPR, has not overlooked the fact that the May 2012 examiner provided a METs level of 1 to 3 and thereafter stated that the Veteran's METs level was not due solely to his heart disorder and he could not provide an estimate as to the percentage due to his heart disorder. Likewise, in reaching the above conclusion the Board, as directed by the JMPR, has not overlooked the fact that in March 2019 the Veteran's representative stated that the January 2019 VA examiner "did not explain how he parsed out the METs for each specific service-connection and non-service-connected origin," and that this was "required by the tenets of Howell v. Nicholson, 19 Vet. App. 535, 540 (2006)." However, the Board finds the May 2012 VA examiner's METs score of 1 to 3 less probative than the January 2019 and June 2021 VA examiners METs scores of 5 to 7 because the January 2019 and June 2021 examiners, unlike the May 2012 examiner, were able to provide METs scores based solely on the adverse symptomatology caused by the Veteran's service-connected heart disorder. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran's position). Similarly, the Board finds that METs scores of 5 to 7 provided by the January 2019 and June 2021 VA examiners both competent and the most credible evidence of record because the June 2021 VA examiner provided the Veteran the same METs score as the January 2019 VA examiner and the June 2021 VA examiner in accordance with Howell, supra, explained how he parsed out the METs for each specific service-connection and non-service-connected disability. See Owens, supra. Similarly, the Board finds that the most probative evidence of record shows that the Veteran's heart disorder never resulted in a LVEF of less than 50 percent because it was 56 percent at the May 2012 VA examination and 70 percent at the January 2019 VA examination; these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that, while treatment records documented the Veteran's complaints and treatment for his heart disorder, nothing in these treatment records show his adverse symptomatology to be worse than what was reported at the above VA examinations. See Colvin, supra. Lastly, the Board finds that while the Veteran, and now the appellant, is competent and credible to report on the Veteran's observable symptoms they are not competent to diagnose acute congestive heart failure, his METs score, and/or his LVEF percentage because these are complex medical questions and neither had the required medical training. See Davidson, supra. Therefore, the Board finds that the preponderance of the evidence of record shows that the Veteran's heart disorder was not manifested by, at least, more than one episode of acute congestive heart failure in any one year, a workload of less than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, and/or a LVEF of less than 50 percent at all times from April 23, 2010. See Owens, supra. Accordingly, the Board finds that a rating in excess of 30 percent for the heart disorder is not warranted under Diagnostic Code 7016-7005 at all times from April 23, 2010. See 38 C.F.R. § 4.104; Fenderson, supra; Hart, supra. This finding does not suggest, in any way, that the Veteran was not having problems with his heart as he clearly was (this is the basis of the 30% finding, which will cause the Veteran many problems). The only question is the degree of the problem based on this evidence and, most importantly, the criteria for a higher rating, nothing more. (Continued on the next page) In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.