Citation Nr: 21069828 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-40 052 DATE: November 19, 2021 ORDER A rating in excess of 60 percent for ischemic heart disease is denied. Service connection for a lower back disability is denied. FINDINGS OF FACT 1. The Veteran's coronary artery disease does not result in congestive heart failure, a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fracture of less than 30 percent. 2. The weight of the competent and probative evidence is against finding that the Veteran's current low back condition due to a disease or injury in service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for ischemic heart disease are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.104, DC 7005. 2. The criteria for service connection for a lower back disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to September 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified, sitting in Louisville, Kentucky, before the undersigned. A transcript of the hearing has been associated with the virtual file and reviewed. This case was previously before the Board in February 2021, at which time the Board remanded the matters for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). With regard to the issues at hand, as an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to a rating in excess of 60 percent for ischemic heart disease. The Veteran contends that he is entitled to a rating in excess of 60 percent for ischemic heart disease, evaluated under Diagnostic Code 7005. This provides for a 100 percent rating for congestive heart failure, or; a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fracture of less than 30 percent. The current 60 percent rating is appropriate when there is 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 that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fracture of 30 percent to 50 percent. 38 C.F.R. § 4.104, DC 7005. A June 2014 VA examination did not provide a response as to whether there was evidence of cardiac hypertrophy or dilation, nor did the examiner provide a response regarding METs testing. No statement was provided regarding the functional impact of the Veteran's ischemic heart disease. 06/25/2014, C&P Exam. A December 2018 ischemic heart disease disability benefits questionnaire (DBQ) was completed by a private physician, who did not provide a response as to whether there was evidence of cardiac hypertrophy or dilation. Likewise, the private physician did not provide a response as to METs testing and did not provide a statement regarding the functional impact of the Veteran's ischemic heart disease. 12/19/2018, VA 21-0960A-1. During the November 2018 Board hearing, the Veteran testified that he has developed symptoms of shortness of breath, chest pain, and lightheadedness while climbing stairs, walking short distances, and bending over to pick things up. The Veteran reported that these symptoms have worsened. Furthermore, the Veteran testified that he had a Thallium stress test in 2018, as he was unable to complete a physical treadmill stress test. 11/01/2018, Hearing Transcript. An April 2019 Board decision remanded the claim for an additional VA examination to assess the current severity of the Veteran's ischemic heart disease, including responses as to whether there was evidence of cardiac hypertrophy or dilation, METs testing, and the functional impact of his disability. 04/19/2019, BVA Decision. An August 2020 VA examination noted that the Veteran did not have a history of congestive heart failure. Additionally, history of coronary artery bypass surgery and valve placement in March 2009 was noted. His METs level was estimated to be greater than 1 but not greater than 3 that results in fatigue based on an interview with the Veteran. The left ventricular ejection fraction was approximately 55-60 percent. The examiner indicated that the Veteran had drastically reduced METs due to his low back pain with standing and walking, and that the examiner was unable to determine the METs level due solely to the cardiac condition without resorting the speculation. The examiner further remarked that the left ventricular ejection fraction is more accurate than METs for determining the Veteran's symptoms because it is an objection test showing that his ejection fraction is normal. 09/19/2020, C&P Exam. Subsequently, a September 2020 rating decision had increased the initial disability rating for ischemic heart disease from 10 percent to 30 percent. 09/21/2020, Rating Decision. A February 2021 Board decision remanded the claim of entitlement to a rating in excess of 30 percent for ischemic heart disease for the issuance of a supplemental statement of the case (SSOC). Specifically, the Board noted that the grant of a 30 percent rating in the September 2020 rating decision did not resolve the Veteran's claim for an increased rating, particularly given that, at the November 2018 Board hearing, the Veteran testified to symptoms that could possibly warrant a rating in excess of 30 percent. 02/25/2021, BVA Decision. The private treatment records reveal that that, in April 2013, the Veteran's left ventricular ejection fraction was approximately 53 percent and his METs level was estimated to be 7. 10/07/2020, Medical Treatment Record Non-Government Facility, page 73. A September 2021 VA examination noted that the Veteran did not have a history of congestive heart failure. His METs level was estimated to be greater than 3 but not greater than 5 that results in dyspnea, fatigue, and angina, based on an interview with the Veteran. The examiner indicated that the METs level provided was solely due to the Veteran's heart condition. The left ventricular ejection fraction was approximately 55-65 percent. 09/19/2020, C&P Exam. Thereafter, a September 2021 rating decision had increased the initial disability rating for ischemic heart disease from 30 percent to 60 percent, effective January 23, 2014. 09/21/2020, Rating Decision. The Board notes that weight of the relevant competent medical evidence, to include the VA examination reports previously described, does not reflect that the Veteran has ever had congestive heart failure. His estimated workload has typically exceeded 3 METs. And, although the August 2020 VA examination estimated a METs level less than 3, the examiner further explained that the Veteran's had drastically reduced METs due to his low back pain with standing and walking, and that the examiner was unable to determine the METs level due solely to the cardiac condition. Finally, the record does not tend to show left ventricular dysfunction with an ejection fracture of less than 30 percent. Therefore, the Veteran has not more nearly approximated the criteria for an increased rating for his coronary artery disease for any portion of the appeal period, and his current 60 percent rating is continued. 38 C.F.R. § 4.104, DC 7017. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). When 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 2. Entitlement to service connection for a lower back disability The Veteran contends that his lower back condition is due to service. The Veteran's private medical treatment records reveal that he first complained of low back pain in December 2007. 06/16/2014, Medical Treatment Record Non-Government Facility, page 7. Likewise, the VA treatment records noted symptoms of osteoarthritis in the Veteran's lower back. 06/24/2015, CAPRI, page 9. In the November 2018 Board hearing, the Veteran testified that he was injured by slipping and falling on his back, and that he never reported his injury while in service. The Veteran stated that he has experienced back pain constantly since that in-service injury. 11 /01/2018, Hearing Transcript. An April 2019 Board decision remanded the claim of entitlement to service connection for a lower back disability. The Board directed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination to determine the nature and etiology of any lower back condition. For the purposes of the medical opinion, the examiner was directed to accept as true/fact that the Veteran suffered an in-service back injury. 04/19/2019, BVA Decision. A September 2020 VA examination noted diagnoses of lumbosacral strain, degenerative arthritis of the spine, degenerative disc disease, and right lower extremity radiculopathy of the sciatic nerve. The examiner opined that the Veteran's lower back condition is less likely than not related to his period of active service. The examiner's rationale was largely based on the lack of contemporaneous service treatment records. However, the examiner also remarked that the Veteran's back pain is "just as likely" due to arthritis and degenerative changes related to age as it is to the in-service lower back injury. 09/18/2020, C&P Exam; 09/18/2020, C&P Exam (medical opinion). A February 2021 Board decision remanded the claim of entitlement to service connection for a lower back disability. Specifically, the Board found that the September 2020 VA examiner's opinion was unclear as to whether the Veteran's back condition is likely due to age-related degenerative changes. And, if so, whether the Veteran's current back pain is just as likely due to his in-service lower back injury. Moreover, the examiner's rationale was based on the lack of contemporaneous treatment records regarding the Veteran's lower back injury but did not clearly accept as true/fact that the Veteran suffered an in-service back injury, as required by the 2019 Board Remand directives. The Board directed the AOJ to obtain an addendum opinion to determine the nature and etiology of the Veteran's lower back disability. For the limited purposes of this addendum opinion, the VA examiner was directed to accept as true/fact that the Veteran suffered an in-service back injury. 02/25/2021, BVA Decision. A June 2021 VA examination noted diagnoses of lumbosacral strain and bilateral lower extremity radiculopathy. The examiner opined that the Veteran's lower back condition is less likely than not related to his period of active service. The examiner acknowledged that the in-service injury, as well as the Veteran's report of constant back since that in-service injury. Additionally, the examiner noted that service treatment records are silent for complaint of back pain and injury, to include a September 1969 Report of Medical History and Examination wherein the Veteran denied back pain and indicated that an examination showed a normal spine. In particular, the examiner considered the post-service treatment records, wherein the Veteran first complained of periodic back pain December 2007. The Veteran again reported occasional back pain in 2017, which improved with physical therapy. According to the examiner, all of the treatment records show that the Veteran reported having periodic back pain, rather than consistent back pain requiring treatment or a back condition impacting the Veteran's function. The examiner indicated that the Veteran's medical history is consistent with the natural progression of osteoarthritis related to aging. 06/29/2021, C&P Exam; 06/29/2021, C&P Exam (medical opinion). Upon consideration of the entire record, the Board finds that the weight of the competent and probative evidence is against finding that the Veteran's current lower back condition is due to a disease or injury in service. The Board places much probative value and weight on the on the June 2021 VA examination report and opinion, as the examiner considered the Veteran's relevant medical history to include his service records, as well as VA and private treatment records. Additionally, the examiner provided a thorough rationale that addressed the Veteran's contentions regarding the onset of his lower back symptoms. The examiner added that the Veteran's current lower back condition is most likely to advancing age, as the Veteran's medical history regarding the current lower back is consistent with the natural progression of his current osteoarthritis related to aging and the relevant medial history. The Board acknowledges that the Veteran believes that the onset of his lower back condition occurred during service and that he avoided medical treatment for this condition. The Veteran in this case was not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the musculoskeletal system. Therefore, it was outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). As such, the Veteran's statements regarding etiology are not competent and lack weight. Consequently, the Board gives more probative weight to June 2021 VA examination and medical opinion, which shows adequate consideration of the relevant evidence and were provided by a competent medical professional. In this regard, the June 2021 VA examiner acknowledged the Veteran's contentions and reports of his symptoms contained in the treatment records when formulating the basis of the medical opinion. In sum, the preponderance of the evidence is against the claim and service connection is denied. The Board emphasizes that it is sympathetic to this appellant and is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility). As the preponderance of the evidence is against the Veteran's claim, there is no reasonable doubt to resolve in his favor. Therefore, the service connection for a lower back condition is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.