Citation Nr: A21020293 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 211006-189434 DATE: December 21, 2021 ORDER A rating in excess of 10 percent for coronary artery disease status post coronary artery bypass grafting from May 1, 2018 through December 8, 2019 is denied. A rating in excess of 30 percent for coronary artery disease status post coronary artery bypass grafting from December 9, 2019 through May 7, 2020 is denied. A compensable rating for anterior midline sternotomy surgical scar status post coronary artery bypass grafting from February 19, 2016 through April 26, 2016 is denied. A rating in excess of 10 percent for painful anterior midline sternotomy surgical scar status post coronary artery bypass graft from April 27, 2016 through May 7, 2020 is denied. A compensable evaluation for anterior midline sternotomy surgical scar status post coronary artery bypass graft pursuant to Diagnostic Code 7805 from April 27, 2016 through May 7, 2020 is denied. FINDINGS OF FACT 1. From May 1, 2018 through December 8, 2019, a workload of greater than 5 METs but not greater than 7 METS did not result in dyspnea, fatigue, angina, dizziness, or syncope due to coronary artery disease; and there was no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X ray. 2. From December 9, 2019 through May 7, 2020, there was not more than one episode of congestive heart failure in the past year; a workload of greater than 3 METs but not greater than 5 METS did not result in dyspnea, fatigue, angina, dizziness, or syncope due to coronary artery disease; and there was not left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 3. The Veteran's coronary artery bypass grafting took place on April 27, 2016, and prior to April 27, 2016, the Veteran did not have a coronary artery bypass grafting sternotomy scar or disability from it. 4. From April 27, 2016 through May 7, 2020, the Veteran has only one sternum scar from his coronary artery bypass grafting surgery. It is 18.5 x 0.7 cm (12.95 square centimeters) and painful, but not unstable. 5. There is no indication in the record that the above scar limits the function of any body part through May 7, 2020, and there are no disabling effects of the scar that are not considered under Diagnostic Code 7804. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for coronary artery disease from May 1, 2018 through December 8, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.104, Diagnostic Code 7005-7017. 2. The criteria for a rating in excess of 30 percent for coronary artery disease status post coronary artery bypass grafting from December 9, 2019 through May 7, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.104, Diagnostic Code 7005-7017. 3. The criteria for a compensable rating for the anterior midline sternotomy surgical scar status post coronary artery bypass grafting from February 19, 2016 through April 26, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Codes 7804, 7805. 4. The criteria for a rating in excess of 10 percent for pain from the anterior midline sternotomy surgical scar status post coronary artery bypass grafting from April 27, 2016 through May 7, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Code 7804. 5. The criteria for a compensable evaluation for anterior midline sternotomy surgical scar status post coronary artery bypass graft pursuant to Diagnostic Code 7805 from April 27, 2016 through May 7, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to January 1969. The Board thanks him for his service, during which, according to his DD Form 214, he was a combat engineer, and for which he was awarded the Combat Action Ribbon. This was previously a legacy case which the Board remanded to the agency of original jurisdiction (AOJ) in October 2019. Thereafter, on May 7, 2020, the AOJ issued a rating decision and a supplemental statement of the case on the issues before us. The Veteran requested a higher level review of the May 7, 2020 rating decision under the Appeals Modernization Act (AMA) in June 2020, which he opted into from the May 2020 supplemental statement of the case; and on October 16, 2020, the higher level review decision was rendered by the AOJ. In an October 6, 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the May 7, 2020 notice of the rating decision. 38 C.F.R. § 20.301. Evidence may have been added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claims, it may not consider any such evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that while the Veteran has asserted that he has been unable to work throughout the entire appeal period, entitlement to a total disability rating based on service-connected disabilities (TDIU) from February 19, 2016 through May 7, 2020, is moot, as the Veteran has already been assigned a 100 percent total rating and special monthly compensation under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1-2. Ratings for coronary artery disease, status post coronary artery bypass grafting, from May 1, 2018 through December 8, 2019 and from December 9, 2019 through May 7, 2020. The Veteran appeals for a rating in excess of 10 percent for his coronary artery disease from May 1, 2018 through December 8, 2019, and for a rating greater than 30 percent from December 9, 2019 through May 7, 2020. The claim was filed in February 2016. However, a 100 percent schedular rating has been assigned for his coronary artery disease from the date of claim through April 30, 2018. That and the evidence closure date leaves only the time periods indicated above as being for appellate review. Although the rating schedule for evaluating heart diseases was amended effective November 14, 2021, the Board's review is limited to evidence of record at the time of the agency of original jurisdiction's May 7, 2020 decision. Because the rating schedule changed after the evidentiary window closed, there is no evidence to consider under the new criteria. This disability is rated under 38 C.F.R. § 4.104, Diagnostic Code 7017, which is for coronary artery bypass surgery, and which provides a 10 percent rating when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; where continuous medication is required. It provides for a 30 percent rating when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X ray. It provides for a 60 percent rating when there has been more than one episode of acute congestive heart failure in 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. Based on the evidence, the Board first concludes that a rating in excess of 10 percent is not warranted for the disability at issue at any time from May 1, 2018 through December 8, 2019. The preponderance of the evidence indicates that during this time period, a workload of greater than 5 METs but not greater than 7 METs did not result in dyspnea, fatigue, angina, dizziness, or syncope due to the Veteran's service connected coronary artery disease; and that there was no evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X ray. A January 2018 VA examination report indicates that there was no evidence of cardiac hypertrophy or dilatation, and that the Veteran had not had congestive heart failure. On interview-based METs test, it was indicated that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. It was noted that he reported walking upstairs daily, to his bedroom. Chest tightness had improved since his April 2016 coronary artery bypass grafting surgery, as had breathing. It was noted that he had had an ejection fraction of 55 to 60 percent at the time of his coronary artery bypass grafting in April 2016. The examiner opined that the Veteran's heart condition did not affect his ability to work. The Board notes that when the level of METs at which symptoms develop 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 symptoms may be used. It would appear based on the fact that exercise testing was not done in January 2018, and was supposed to have been unless it was contraindicated, that it was contraindicated. The VA examination report from March 2020 supports that it was medically contraindicated, with the examiner specifically indicating that it was, due in part to a true lung condition which cannot be dismissed. Medical records show that this condition had been present and very significant during the time period leading up to when the January 2018 VA examination was conducted. Also, the VA examiner in March 2020 indicated that when a person's METs level is between 1 to 3 METs, and also has comorbid conditions such as asthma and poor lung function, the best indicator of his cardiac function is his ejection fraction. The Veteran's cardiac ejection fraction was normal in April 2016, he reported in January 2018 that his symptoms had improved since the surgery in April 2016, and there were no symptoms attributed to the Veteran's coronary artery disease at the time of the Veteran's January 2018 VA examination. These are strong indications that a rating in excess of 10 percent is not warranted for the Veteran's coronary artery disease during this time period. Moreover, in November 2018 and essentially again in February 2019, a VA physician indicated that the Veteran had been having worsening dyspnea, but he suspected that it may have been due to the Veteran's weight and deconditioning, and noted that the Veteran also had musculoskeletal issues. In November 2018, the VA physician could not exclude the Veteran's dyspnea as a possible cardiac component of his symptomatology, but he did not opine that it at least as likely as not was. Furthermore, there were multiple occasions between May 2018 and December 8, 2019 on which it was reported that the Veteran was using a treadmill for 25-30 minutes on most days, with no chest pain being reported. And in July 2019, when he was seen at the emergency room for shortness of breath, it was found to be due to asthma, and he was given a steroid dose pak for asthma. In short, while METs values were not reported prior to December 9, 2019, and an exercise stress test was not conducted, the preponderance of the evidence indicates that prior to December 9, 2019, a workload of greater than 5 to 7 METs did not result in dyspnea, fatigue, angina, dizziness, or syncope due to the Veteran's service connected coronary artery disease; and that there was no evidence of cardiac hypertrophy on dilatation on electrocardiogram, echocardiogram, or X ray. The probative evidence as to the Veteran's status prior to December 9, 2019 all points to this. He was having significant trouble with asthma, causing shortness of breath, an exercise stress test was contraindicated due to lung and other problems, he was using a treadmill 25-30 minutes on most days, with no chest pain. And at the time of an interview-based METs test in January 2017, he denied experiencing symptoms attributable to a cardiac condition with any level of physical activity, and the examiner opined that the Veteran's heart condition did not affect his ability to work. No evidence shows that a workload of greater than 5 METs but not greater than 7 METs resulted in dyspnea, fatigue, angina, dizziness, or syncope due to coronary artery disease prior to December 9, 2019, and the preponderance of the evidence indicates that this was not the case. Private medical records in the file, some of which attention was directed to by the representative in December 2019 in conjunction with arguments that a 100 percent rating is warranted, are also not supportive of a rating in excess of 10 percent for the time period in question. They show that the Veteran had a normal myocardial perfusion study with a mildly decreased left ventricular ejection fraction in March 2018; an echocardiogram in August 2018 with an estimated ejection fraction in the range of 50 to 55 percent; and an ejection fraction of 57 percent (normal) on nuclear stress testing in March 2019, with shortness of breath, nausea, and headache, but without any electrocardiogram changes. And while the Veteran complained of angina (chest pain) in August 2019, a cardiac catheterization at that time showed a normal left ventricular function, meaning that his left ventricular ejection fraction was normal. None of this tends to indicate that for the Veteran, a workload of greater than 5 METS but not greater than 7 METS resulted in dyspnea, fatigue, angina, dizziness, or syncope due to his service connected coronary artery disease during this time period; or that he had evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X ray. Based on the evidence, the Board also concludes that a rating in excess of 30 percent is not warranted for the disability at issue at any time from December 9, 2019 through May 7, 2020. The preponderance of the evidence indicates that during this time period, there was not more than one episode of acute congestive heart failure in the past year; that a workload of greater than 3 METs but not greater than 5 METs did not result in dyspnea, fatigue, angina, dizziness, or syncope due to the Veteran's coronary artery disease; and that there was not left ventricular dysfunction with an ejection fraction of 30 to 50 percent. There is no evidence of any of these during this time period. And to the contrary, the VA examiner in December 2019 estimated that the Veteran's METs level due solely to his cardiac condition was greater than 5 to 7 METs, for reasons which were explained in detail. The examiner also reported that the Veteran had not had congestive heart failure. The examiner indicated that an interview-based METs test was conducted, as an exercise stress test was not without significant risk. The Veteran's representative argued in July 2019 that the Veteran did not have the medical expertise to provide an accurate depiction of his heart condition when he was afforded an interview-based METs test instead of an exercise stress test in January 2018. However, the Veteran is capable of providing lay evidence, and the preponderance of the evidence indicates that the criteria for a 30 percent rating, discussed above, were not met on any date certain prior to December 9, 2019, and this is what is important. The representative wanted an exercise METs test, but the evidence including the January 2018 and March 2020 VA examination reports indicates that this is medically contraindicated due to the Veteran's comorbidities. A VA examiner opined in March 2020 that she believed that the 10 percent rating for the Veteran's heart based on another examiner's METs of no limitations in 2018 is not correct, and that she believed the Veteran's rating should be based on the December 2019 VA examination, but she was offering legal opinions, not medical ones. They are not probative evidence. The representative argued in December 2019 that the January 2018 VA examination report shows that the Veteran had experienced chest tightness when walking upstairs, but did not consider this in the interview-based METs testing. Private medical records including from March 2018, February 20019, and March 2019, and September 2019 were submitted, and it was argued that the evidence showed that the Veteran's coronary artery disease was not adequately compensated by his then 10 percent rating. However, as indicated above, the best indication of the Veteran's cardiac function prior to December 9, 2019 was the Veteran's normal ejection fraction. The representative argued in October 2021 that the December 9, 2019 VA examination report is inadequate. He argued in October 2021 that it failed to account for the entirety of the record and overlooked a November 2019 pulmonary treatment note that reports stable asthma and attributes exacerbations of asthma to the weather. The representative indicated that had the VA examiner reviewed the medical evidence submitted, the examiner would have observed that the Veteran's own cardiologist found symptoms much more severe than reported in the December 2019 VA examination report. For instance, there is a March 2018 private medical record which shows that shortness of breath, nausea, and leg fatigue were present on a Bruce protocol stress test. A February 2019 private medical record documents complaints of chest tightness and worsening dyspnea on exertion, increased fatigue over the past 3-4 weeks, and chest pressure when going up stairs or walking short distances. Also, a March 2019 private medical record indicates that the Veteran's exercise stress test achieved a work level of maximum METs of 1.0, with the Veteran having to stop due to shortness of breath, nausea, and a headache. However, the December 2019 VA examination report is not inadequate, and the record provides a proper basis to sustain the denial of a rating greater than 30 percent during this portion of the rating period at issue. Whether or not exacerbations of asthma are due to the weather is irrelevant. And the December 2019 VA examination report considers what the Veteran's METs workload was solely in consideration of his service connected coronary artery disease, which is what is ratable in the Veteran's case, since the evidence demonstrates that this is reasonably capable of being estimated. Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, the private medical records cited by the representative are not particularly probative, as they do not indicate that the symptoms enumerated in Diagnostic Code 7017 were present due to the Veteran's service connected coronary artery disease, and we know that the Veteran has significant comorbidities affecting stress testing. Also, it is clear that the VA examiner in December 2019 understood that the Veteran had these symptoms. However, her opinion was that the METs workload level due solely to the Veteran's service connected coronary artery disease is greater than 5 to 7 METs. She adequately considered the important collateral information including the Veteran's normal cardiac ejection fraction rate in August 2019, and treatment reports showing symptoms associated with the Veteran's asthma, in estimating the Veteran's METs workload due to his service connected coronary artery disease. It is also noted that in February 2019, the Veteran reported no significant chest pain or shortness of breath with activity and that he walked on a treadmill most days for 25-30 minutes without chest pain and did not feel his activity was restricted by chest pain or shortness of breath. And as the VA examiner stated in March 2020, to state that all of the Veteran's inability to perform his activities of daily living is based on his cardiac status is incorrect. She indicated that the Veteran's substantially decreased METs is influenced by his breathing difficulty due to his asthma. She indicated that the representative was not considering comorbid conditions such as the Veteran's asthma and poor lung function which affected his stress testing. The examiner indicated that the Veteran's cardiac ejection fraction is the best indicator of the Veteran's cardiac function in the Veteran's situation. The examiner noted that the Veteran's most recent pulmonary function test results showed a moderate airflow obstruction, and that this makes a person short of breath regardless of a heart condition. The Veteran's 1-3 METs was due not only to his cardiac condition, but also to his lungs and other comorbidities. To rate the disability based on impairment from other causes would be pyramiding in this case, and this is prohibited. Mittleider; 38 C.F.R. § 4.14. Higher ratings for the Veteran's coronary artery disease status post coronary artery bypass grafting from May 1, 2018 through December 8, 2019, and from December 9, 2019 through May 7, 2020, are therefore denied. 3-4 Ratings for the Veteran's service connected anterior midline sternotomy surgical scar status post coronary artery bypass graft The Veteran appeals for additional compensation for his service connected anterior midline sternotomy surgical scar. Currently, it has a 10 percent rating under Diagnostic Code 7804, from the April 27, 2016 date of the surgery which created it; and a noncompensable rating under Diagnostic Code 7805, also from that date. Based on the evidence, the Board concludes that a compensable rating cannot be assigned for the service connected coronary artery bypass grafting scar prior to April 27, 2016, as the preponderance of the evidence indicates that no scar existed prior to that date. The scar was caused by the coronary artery bypass grafting surgery. The evidence including a May 2016 private medical record indicates that the coronary artery bypass grafting occurred on April 27, 2016, and there is no dispute that it was performed on that date. As there was no scar prior to April 27, 2016, no compensable ratings can be assigned for disability from the scar prior to April 27, 2016. Based on the evidence, the Board also finds that a rating in excess of 10 percent is not warranted for the Veteran's service connected coronary artery bypass grafting sternotomy scar disability for any part of the rating period from April 27, 2016 through May 7, 2020. The preponderance of the evidence. including a December 2019 VA examination report. indicates that he has one scar, and that it is not unstable. All applicable versions of 38 C.F.R. § 4.118 are being considered. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, he would need to have three or four scars that are unstable or painful for a 20 percent rating. Or, if he had one or more scars that were both painful and unstable, then 10 percent could be added to the evaluation that is based on the total number of unstable or painful scars. In this case, he has 1 scar, and the evidence indicates that it is only painful, rather than also unstable. The examiner who examined the Veteran for his scar in December 2019 indicated that he has 1 surgical scar on his sternum, and that it is not unstable. There is no evidence to the contrary. Consideration of other Diagnostic Codes in 38 C.F.R. § 4.118 does not result in a higher rating for the scar either. The VA examiner in December 2019 indicated that the Veteran's scar is 18.5 x 0.7cm. At 12.95 square cm, it does not meet the size requirements for a separate compensable rating under either Diagnostic Code 7801 or 7802. And it is not on the head, face, or neck, so it cannot be rated under Diagnostic Code 7800. The preponderance of the evidence also indicates that a separate compensable rating is not warranted for the scar in question pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805. A review of the record including the December 2019 VA examination report indicates that there are no disabling effects of the scar which are either claimed or shown that are not considered under Diagnostic Code 7804, and this would be necessary for a separate compensable rating to be assigned pursuant to Diagnostic Code 7805 under another appropriate Diagnostic Code. The Veteran indicated during his December 2019 VA examination that it feels like somebody is grabbing him and pulling and twisting his scar, but this is part of his description of the pain which is compensated under Diagnostic Code 7804. There is no indication in the record that his scar limits the function of any body part, in a compensable way, or that there any disabling effects which are not considered in Diagnostic Code 7804. Thus, a compensable rating pursuant to Diagnostic Code 7805 is not warranted. (Continued on the next page) The preponderance of the evidence is against the claims and there is no reasonable doubt to be resolved in the Veteran's favor concerning them. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.