Citation Nr: 21072174 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-55 942 DATE: December 2, 2021 ORDER Entitlement to a rating higher than 10 percent prior to July 10, 2020, and in excess of 60 percent as of July 10, 2020, for chronic left bundle branch block is denied. Entitlement to an initial rating of 10 percent, but no higher, for vertebral stroke is granted. FINDINGS OF FACT 1. Prior to July 10, 2020, hypertensive heart disease was not manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 2. Effective to July 10, 2020, hypertensive heart disease was not manifested by chronic congestive heart failure, or a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. Residuals of vertebral stroke have been manifested by no more than mild swallowing difficulties and dizziness with a normal gait at any time during the appeal period. 4. The Veteran does not have any other residual disability that is separate and distinct from the service-connected disabilities or that can be attributed to the stroke. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent prior to July 10, 2020, and in excess of 60 percent as of July 10, 2020, for chronic left bundle branch block have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7007. 2. The criteria for entitlement to an initial 10 percent rating, but not higher, for vertebral stroke have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8008. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1972 to July 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In September 2019, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In April 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. Increased Rating Disability ratings are based on VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38C.F.R. §4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran's favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a rating higher than 10 percent prior to July 10, 2020, and in excess of 60 percent as of July 10, 2020, for chronic left bundle branch block. The service-connected chronic left bundle branch block with minimal symptoms and hypertensive heart disease is rated 10 percent prior to July 10, 2020, and 60 percent disabling as of July 10, 2020, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7015-7007. Under both Diagnostic Code 7007 and 7015, a 30 percent rating is assigned if hypertensive heart disease is manifested by a workload of greater than 5 METs but not greater than 7 METs resulting 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 congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Codes 7007, 7015. One MET (metabolic equivalent) is 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 decision 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) resulting in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. A July 2013 VA examination diagnosed left bundle branch block. The examiner noted that the condition did not require continuous medication for control and did not qualify within the generally accepted medical definition of ischemic heart disease. The Veteran was not found to have had a myocardial infarction, congestive heart failure, heart valve conditions, infectious heart conditions, or a pericardial adhesion. The Veteran was also never hospitalized for a heart condition. The Veteran's heart condition was found to have no impact on the Veteran's ability to work. On interview based METs testing, the METs level was greater than 7 to 10 METs, which was found to be consistent with activities such as climbing the stairs quickly, moderate bicycling, sawing wood, and jogging. The Veteran did experience dyspnea, fatigue, and angina at that level. During stress testing in August 2013, the Veteran's left ventricular ejection fraction was 63 percent with normal heart cavity size and wall motion. An October 2014 chest X-Ray was normal and found normal heart size and no definite acute significant cardiopulmonary pathology. An August 2018 exercise stress test was clinically negative and electrically nondiagnostic. At a July 2020 VA examination, the Veteran was diagnosed with hypertensive heart disease and chronic left bundle branch block. The examiner noted that the Veteran's condition did not require continuous medication for control and did not qualify within the generally accepted medical definition of ischemic heart disease. The Veteran was not found to have had a myocardial infarction, congestive heart failure, heart valve conditions, infectious heart conditions, or a pericardial adhesion. The Veteran was also never hospitalized for a heart condition. During the examination, the Veteran's heart condition was found to have no impact on the ability to work. On interview based METs testing, the METs level was greater than 5 to 7 METs, which was found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavy yard work (digging). The Veteran did not experience dyspnea, fatigue, angina, dizziness, or syncope at that level. Left ventricular ejection fraction was noted as being 49 percent. The examiner found mild left ventricular hypertrophy and mild global decreased wall motion. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a rating for chronic left bundle branch block with minimal symptoms and hypertensive heart disease greater than 10 percent disabling prior to July 10, 2020, or a rating in excess of 60 percent disabling as of July 10, 2020. The Board finds that the evidence of record does not more nearly approximate the criteria for the next higher rating. 38 C.F.R. § 4.7. Prior to July 10, 2020, the evidence of record does not demonstrate a cardiac disability manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray commensurate with a 30 percent rating. Therefore, the criteria for a higher rating are not met. Effective July 10, 2020, the evidence of record does not demonstrate a cardiac disability manifested by chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent commensurate with the next higher rating of 100 percent. Therefore, the criteria for the next higher rating are not met. The Board accepts that the Veteran is competent to report on his functional impairment such as difficulty walking, dyspnea, and fatigue. Laypersons are competent to report symptoms and events that they experience through their senses. 38 C.F.R. § 3.159(a)(2) (2017); Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, the Board finds the Veteran's own reports of symptomatology to be credible. However, the schedular criteria for chronic left bundle branch block and hypertensive heart disease are predicated on medical findings and not purely subjective symptoms. Here, the medical findings do not more nearly approximate the criteria for the next higher rating. The more probative evidence consists of that prepared by neutral skilled professionals, and that evidence demonstrates that the currently assigned ratings are appropriate for the Veteran's heart disease. The Board has considered whether a higher rating is available under any other potentially applicable provision of the rating schedule. However, the Board finds that a higher rating is not warranted based on any other provision of the rating schedule at any time throughout the period of appeal. 38 C.F.R. § 4.104, Diagnostic Codes 7000-7019. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating for a heart disability, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an initial rating of 10 percent, but no higher, for vertebral stroke. A November 2013 rating decision established service connection for vertebral stroke (claimed as vertebral stroke secondary to hypertension) and assigned a 0 percent rating, effective August 30, 2012. Residuals of vertebral stroke are currently rated 0 percent prior to February 17, 2015, and 10 percent disabling as of February 17, 2015, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8008. Under Diagnostic Code 8008, a thrombosis involving the blood vessels of the brain warrants a 100 percent rating for a period of six months. Thereafter, the rating will be based on associated residual disability, with a minimum rating of 10 percent. The minimum rating for residuals does not apply if there are no ascertainable residuals. 38 C.F.R. § 4.124a, Diagnostic Code 8008. A Note explains the requirements for the minimum rating for residuals under Diagnostic Codes 8000-8025. During a September 2013 VA examination, the Veteran was found to have been diagnosed with a cerebrovascular accident (stroke) in 2003. The only noted residual of the stroke was mild swallowing difficulties, abnormal speech, and remote dysesthesia. The central nervous system disorder was found to have no impact on the ability to work. In May 2015, the Veteran was seen by neurology for dizziness. Symptoms of dizziness were found to be likely a permanent residual from the vertebral artery stroke. He was sent to vestibular rehabilitation due to residual symptoms related to the stroke In August 2015, the Veteran attended physical therapy for vertigo. During that treatment, the examiner stated that, because the initial CVA occurred in 2003 and the vertigo symptoms began in February 2015, it was doubtful that incident was the origin of initial symptoms. Testing for possible unilateral peripheral deficits was also negative, with no significant findings on positional testing and an intact VOR reflex as indicated by negative VOR head thrust testing. The patient demonstrated findings of severe dizziness handicap; moderate motion sensitivity, greatest with right cervical motion; and impaired balance, complicated by cervical pain and guarded cervical motion. Based on subjective symptom reporting, the therapist suspected initial symptoms, possibly secondary to mechanical peripheral vestibular dysfunction, which had since resolved and now complicated cervical dysfunction which can contribute to possible cervicogenic dizziness. At the September 2019 Board hearing, the Veteran asserted a worsening of the condition, to include fatigue, shortness of breath, and vertigo. At a July 2020 VA examination, the Veteran reported experiencing dizziness, balance impairment, and lightheadedness. The Veteran was found to have a totally normal examination. The examiner noted that the Veteran regularly used a cane for gait stabilization. The Veteran was also found to be unable to do work that required frequent postural changes or work in elevated or unsecured settings. The examiner explicitly stated that the Veteran's residuals of vertigo, ataxia, and balance impairment were not seen on examination. The Board finds that an initial rating of 10 percent for residuals of vertebral stroke is warranted. However, the Board further finds that there is no evidence of residuals of a stroke which warrant a rating in excess of 10 percent disability throughout the appeal period. The Veteran was initially found to have mild swallowing difficulties as a result of the service-connected disability. The Board considered whether the reported mild swallowing difficulties warrant a disability rating in excess of 10 percent. Under Diagnostic Code 7203 a moderate stricture of the esophagus warrants a 30 percent rating and a severe stricture of the esophagus that permits liquids only warrants a 50 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7203. The Veteran's swallowing difficulties have consistently been described as mild. There is no evidence of a stricture of the esophagus to be considered moderate. Therefore, the Board finds that level of impairment to be consistent with no more than a 10 percent rating. The Board has also considered whether the Veteran's dizziness warrants a rating in excess of 10 percent. Under Diagnostic Code 6204 occasional dizziness warrants a 10 percent rating. Dizziness and occasional staggering warrants a 30 percent rating. 38 C.F.R. § 4.87, Diagnostic Code 6204. While the Veteran has self- reported dizziness throughout the course of the appeal, to date, no examiner has found the Veteran's gait to be abnormal. Therefore, a rating in excess of 10 percent is not warranted. In short, the only objective evidence of residual disabilities that are separate and distinct from other service-connected disabilities and can be attributed to the Veteran's stroke are mild swallowing difficulties, which would not warrant a separate compensable rating, and dizziness, which would warrant a rating no higher than 10 percent. Because a rating can be applied for dizziness under Diagnostic Code 6204, or as a minimum rating under Diagnostic Code 8008 for ascertainable residuals, but not both, only a single 10 percent rating applies. The minimum rating under Diagnostic Code 8008 applies when a compensable rating is not warranted for stroke residuals, but there are ascertainable residuals. Because there have been ascertainable residuals through the appeal period, a 10 percent initial rating is warranted for the appeal period. Accordingly, the Board finds vertebral stroke residuals meets the criteria to warrant a minimum 10 percent rating under Diagnostic Code 8008 throughout the appeal period. The Board finds that the preponderance of the evidence is against the assignment of rating in excess of 10 percent for residuals of a stroke, and entitlement to any separate or higher rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.