Citation Nr: 21072221 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 11-05 306A DATE: December 2, 2021 ORDER Entitlement to an initial 100 percent rating for coronary artery disease (CAD) is granted for a three-month period (from March 16, 2010 to June 16, 2010); entitlement to a rating in excess of 10 percent for CAD from June 16, 2010 to January 12, 2017 is denied. FINDINGS OF FACT 1. Evidence, including laboratory tests and private and VA opinions, shows that the Veteran likely suffered a myocardial infarction (MI) between March 12, 2010 and November 3, 2010; the exact date of the event is not ascertainable, but he asserted a worsening of CAD symptoms a March 2010 cardiac procedure. 2. Outside of the MI total rating period, to January 12, 2017, the Veteran's CAD was not shown to have been characterized by a workload of seven (7) metabolic equivalents (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; by evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; by left ventricular dysfunction with an ejection fraction of 50 percent or less; or by congestive heart failure. CONCLUSIONS OF LAW 1. A 100 percent rating is warranted for the Veteran's CAD from March 16, 2010 to June 16, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code (Code) 7006. 2. A rating in excess of 10 percent for CAD is not warranted from June 16, 2010 to January 12, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.100, 4.104, Diagnostic Code (Code) 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from October 1966 to August 1968. This case came before the Board of Veterans' Appeals (Board) on appeal from a January 2011 Department of Veterans Affairs (VA) rating decision, which granted service connection for CAD, rated 10 rating percent, effective March 16, 2010. In July 2013, a Travel Board hearing was held before a Veterans Law Judge other than the undersigned (with testimony addressing issues other rather than the rating for CAD). In January 2015, the Board remanded the case to the Regional Office (RO) (i.e., Agency of Original Jurisdiction, or AOJ) for another Travel Board hearing [so the Veteran could record the hearing with his own equipment, as he was denied that opportunity in July 2013]. In April 2015 a Travel Board hearing was held before the undersigned. In July 2016, the Board remanded the case for additional development. An August 2018 rating decision increased the rating for CAD from 10 percent to 60 percent, effective January 12, 2017. A February 2019 Board decision, in pertinent part, denied an increase in the staged ratings for CAD. The Veteran appealed the Board's decision in part to the United States Court of Appeals for Veterans Claims (CAVC). A June 2020 CAVC Memorandum Decision set aside that part of the Board's decision denying a rating in excess of 10 percent for CAD prior to January 12, 2017 and remanded the matter to the Board for further development and adjudication. In March 2021 and July 2021, the case was again remanded for additional development. Entitlement to an initial rating in excess of 10 percent for CAD before January 12, 2017 The Veteran contends that he is entitled to a higher initial rating for his CAD before January 12, 2017 because his CAD was worse than is reflected by the current 10 percent rating. At the April 2015 Board hearing, he testified that he has sustained multiple heart attacks, and he felt his CAD should be evaluated under the criteria for rating MI. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Prior to January 12, 2017, the Veteran's disability has been rated 10 percent under 38 C.F.R. § 4.104, Code 7005, for arteriosclerotic heart disease (CAD). Under Code 7005, a 10 percent rating is warranted where a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; with evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. One MET 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. 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 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. Under 38 C.F.R. § 4.104, Code 7006, for MI, a 100 percent rating is warranted during, and for 3 months following, a myocardial infarction. Thereafter, the criteria under Codes 7005 and 7006 are identical, and the assignment of separate ratings based on the same criteria are prohibited. 38 C.F.R. § 4.14. On March 16, 2010, the Veteran filed a claim of service connection for ischemic heart disease. In support of the claim, he submitted private medical records, dated March 12, 2010, showing that he underwent a left heart catheterization, coronary angiography, and left ventriculography. The results of the tests, by his private cardiologist N.C., M.D., showed, among other things, normal left ventricular ejection fraction (70 percent) and mild to moderate CAD. In a March 2010 statement, the Veteran indicated that for the past year he had been experiencing symptoms of severe fatigue, swelling of the ankles, strong heart palpitations, and chest pain with sharp pain down his left arm. In a June 2010 statement, he indicated that he began to experience symptoms of extreme fatigue, swollen ankles, imbalance, and chest pain in 2006. At the time, he said these symptoms appeared to subside with rest until after March 2007 when they worsened and were no longer alleviated by bed rest. He stated a 2010 angiogram revealed 50 percent blockage in the blood vessels surrounding the heart. He believed that manifestations of dizziness and imbalance were symptomatic of both a left vestibular disorder and ischemic heart disease (he also noted he was involved in a motor vehicle accident in March 2007 and was informed by an ENT physician that his severe dizziness and imbalance were associated with a left vestibular injury). On an October 2010 VA heart examination, the physician noted symptoms of chest pain (with one block of normal speed walking), fatigue, shortness of breath, and dizziness (without syncopal episodes). The Veteran was taking daily medication. His METS level, at which symptoms of dyspnea, fatigue, angina, dizziness, or syncope resulted, was estimated to be 7-8. It was noted that exercise testing was contraindicated because he had had an angiogram within the past 12 months (in March 2010). The examiner noted that there was no left ventricular dysfunction where the ejection fraction was 50 percent or less, and no evidence of congestive heart failure (whether chronic or more than one episode of acute failure in the past year). The examiner opined that the Veteran's condition did not affect his usual occupation and daily activities. The examiner concluded that the Veteran had mild to moderate CAD. Private records dated November 3, 2010 show that the Veteran underwent a stress imaging test, which showed mild fixed inferoapical perfusion defect, normal ejection fraction (of 68 percent) and wall motion, and no electrocardiographic evidence of ischemia (but reduced sensitivity secondary to inability to achieve the maximum predicted heart rate). In a January 2011 letter, the Veteran's private treating cardiologist, N.C., M.D., stated that on November 3, 2010 he was discovered to have a mixed, fixed, anteroapical perfusion defect, which most likely represented a previous infarct. In a January 2011 statement, the Veteran asserted that following his cardiac catheterization in March 2010, he experienced a worsening of symptoms and underwent further testing in November 2010, which showed he had suffered a heart attack. He stated that he suffered from angina and was unable to climb steps or perform maintenance around his home. In a December 2011 letter, Dr, N.C. stated that the Veteran had been his patient for approximately two years, during which time he had had intermittent episodes of chest pain, dizziness, shortness of breath, and nausea. He noted the Veteran's diagnosis (by another physician) of vestibular disorder, possibly causing dizziness and imbalance, and stated that some of the dizziness and imbalance may also be secondary to CAD. A June 2015 private medical record (a pre-operative history and physical examination relating to surgical treatment of the cervical spine) notes that the Veteran had a history of mild CAD, with a prior cardiac catheterization showing 50 percent obstruction of the left circumflex artery. His left ventricular function was normal. He reportedly had a stress test in June 2013 with SPECT myocardial perfusion, which was completely normal. He had no new symptoms and no history of congestive heart failure. It was further noted that his exercise tolerance was "at least" 4 METs; he was able to climb and descend stairs at home, which was the most exertion he usually did due to neck pain. On a January 12, 2017 VA heart examination, the examiner noted that continuous medication was required for control of the Veteran's heart condition; that he had not had congestive heart failure; and that he had a MI in 2010. Left ventricular ejection fraction was 70 percent. The examiner stated that the Veteran's interview-based METs level was greater than three to five METs, with symptoms of dyspnea, fatigue, and dizziness. Relative to the impact of his heart on his ability to work, the examiner stated the Veteran had symptoms of dizziness, dyspnea, and fatigue and had no clear medical history that limited his ability to exert himself other than cervical radiculopathy and a vestibular insufficiency. He noted the Veteran would be unable to perform an exercise stress test given his unsteady gait, and the estimated METs were based on symptoms reported by the Veteran. In April 2021 and July 2021, the January 2017 VA examiner provided addendum opinions addressing the severity of the Veteran's CAD prior to January 12, 2017. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's reported symptoms of chest pain, dizziness, shortness of breath, dyspnea, fatigue, and nausea are credible. However, his opinions and observations alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.104 with respect to determining the severity of his CAD, because a determination regarding the significance and impact of the symptoms is a medical question that must be addressed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Considering all relevant evidence of record, the Board finds that the evidence supports the assignment of a 100 percent rating for a (the specific period is uncertain, because the date of the Veteran's MI is not established by the record) three-month period beginning between March 12, 2010 and November 3, 2010. [The Board observes that the date is not critical-as this 100 percent schedular rating award provides for the same 3 month total rating benefit, whether assigned as the initial rating or from beginning on some other day prior to November 3, 2010 when the MI actually occurred.] Otherwise, the Board finds that a rating in excess of 10 percent for the Veteran's CAD prior to January 12, 2017 is not warranted. Regarding a 100 percent rating, the criteria of Code 7006 (which the Veteran invoked at the Board hearing) provide that such rating is warranted during, and for three months following, MI that has been documented by laboratory tests. As was earlier noted, the Veteran underwent cardiac testing on March 12, 2010 and November 3, 2010. In January 2011, his treating physician, Dr. N.C., indicated that the November 2010 tests reflected findings that most likely represented a previous infarct, but did not specify when that infarct occurred (so the record shows that the MI occurred prior to November 3, 2010. In response to a request to address the matter, the VA examiner opined in July 2021 that the Veteran more likely than not had a MI after the March 2010 test and before the November 2010 test, given the results of those tests and the opinion by Dr. N.C., as well as the Veteran's statements claiming a worsening of his symptoms after the March 2010 test. He further stated that there was no clear date in the evidence by which to mark the MI, so an opinion on its precise incurrence would be speculative. Thus, while the exact date of the myocardial infarction is not ascertainable (and likely incapable of being determined), the medical evidence shows that it probably occurred on some date between the March 12, 2010 and November 3, 2010 cardiac tests. Notably, the Veteran asserted that he experienced a worsening of CAD symptoms after his March 2010 cardiac procedure, but he did not provide further details relating how long after the procedure his symptoms were exacerbated. Nevertheless, in interpreting the evidence in a light most favorable to the Veteran, the Board will approximate the date of the myocardial infarction to be the date of receipt of his disability claim on March 16, 2010. Therefore, under Code 7006, the assignment of an initial 100 percent rating from such date and continuing for three months (i.e., March 16, 2010 to June 16, 2010) is warranted. Beyond the three-month period for the assignment of a 100 percent rating (i.e., from June 17, 2010 to January 12, 2017), the Veteran's CAD is not shown to be manifested by congestive heart failure, and there was no evidence of cardiac hypertrophy or dilatation. Evidence also shows that he had either normal left ventricular function or left ventricular dysfunction with an ejection fraction greater than 50 percent. Regarding METs, his CAD had an estimated workload of greater than seven (7) METs. In January 2011, he stated his activities were impacted (he said he could not climb steps or perform home maintenance). Such claims are not convincing in light of his treating physician's December 2011 statement that his symptoms (including chest pain) were intermittent, a June 2013 stress test (noted in a June 2015 pre-operative record) that was completely normal, and a June 2015 pre-operative record that indicates he was able to climb and descend stairs at home. The June 2015 record also noted his exercise tolerance was "at least" 4 METs, but this finding only provides a vague estimate where the lack of further exertion was attributed to neck pain rather than a cardiac-related cause. It is noted that the record was returned to the January 2017 VA examiner for an addendum retroactive opinion regarding the severity of the Veteran's CAD prior to January 12, 2017. This was in response to the Memorandum Decision of June 2020 indicating that the examiner should clarify when he believed the Veteran's disability reached the level of severity as reflected in the METs level (of a workload of greater than 3 but not greater than 5) estimated on January 12, 2017 VA examination. In the April 2021 and July 2021 addendum opinions, the VA examiner stated that it would be speculative to estimate the severity of the CAD; that the record was deficient of the additional objective information that was necessary to furnish an estimate; that the METs level provided in January 2017 was based purely on an interview of the Veteran at that time; that there was no further procurable information to enable the requested estimate; and that information also cannot be obtained to objectively measure when the Veteran's CAD reached the level of severity equivalent to a workload of greater than 5 METs but less than 7 METs (the criteria for a 30 percent rating). In other words, there is no outstanding evidence in this case that could be secured to obtain an opinion that was not predicated on mere conjecture. Therefore, based on the assembled, procurable data, the examiner stated that for the period prior to January 12, 2017 he could not provide an estimation of the Veteran's level of activity, expressed in METs, (with an approximate date) without resort to speculation, and declined to do so. As acknowledged by the CAVC Memorandum, such a retroactive opinion "would be admittedly difficult" to provide. Here, efforts to ascertain an estimation have been made, and there is no indication of any further development that may produce an estimation (with an onset date) that may be relied upon for rating purposes. The foregoing findings, which may be relied upon for rating purposes, correspond to the criteria for a 10 percent, and no higher, rating under Code 7005. Additionally, the Veteran required continuous medication, which is also consistent with the criteria for a 10 percent rating. For these reasons, the preponderance of the evidence is against the award of a rating higher than 10 percent for CAD from June 16, 2010 to January 12, 2017. A higher 30 percent rating under Code 7005 is not warranted unless METs testing shows the Veteran develops dyspnea, fatigue, angina, dizziness, or syncope at a workload greater than 5 METs but not greater than 7 METs, or; alternatively, evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. As earlier explained, the Veteran's known (and reliable) METs level at which symptoms appeared was greater than 7 METs, and there was no evidence of cardiac hypertrophy or dilation on testing. Thus, the Board concludes that the Veteran's CAD did not meet the criteria for a higher (30 or 60 percent) rating prior to January 12, 2017. The preponderance of the evidence is against the award of a further (beyond the 100 percent rating for a 3 month period beginning November 3, 2010) increase in the rating for the Veteran's CAD prior to January 12, 2017. Therefore, the appeal in the matter must be denied. George R. Senyk Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debbie Breitbeil, 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.