Citation Nr: 21008775 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-41 837 DATE: February 18, 2021 ORDER 1. Entitlement to an increased disability rating for coronary artery disease (CAD) status post coronary artery bypass graft, beginning May 29, 2018, is dismissed as moot, as the full benefit has previously been granted. 2. Entitlement to an increased disability rating of 60 percent for CAD status post coronary artery bypass graft, beginning June 1, 2011, is granted. 3. Entitlement to an increased disability rating of 100 percent for CAD status post coronary artery bypass graft, beginning November 1, 2011, is granted. 4. Entitlement to service-connection for left leg venous insufficiency, to include as secondary to the Veteran’s service-connected CAD, is denied. FINDINGS OF FACT 1. In October 2020 VA Regional Office (RO) granted the Veteran’s claim for an increased rating at a disability rating to 100 percent disabling for CAD, status post coronary artery bypass graft, beginning May 29, 2018. 2. On May 16, 2011, the Veteran’s CAD was characterized as having a left ventricle ejection fraction (LVEF) of 40%. 3. In November 2011, the Veteran’s CAD was characterized as having a workload of 1–3 metabolic equivalents of task (METs) with a showing of dyspnea by way of stress test. 4. The Veteran’s left leg venous insufficiency is not shown to be causally or etiologically related to his service, or to have been caused by or aggravated by his service-connected CAD. CONCLUSIONS OF LAW 1. The benefit sought on appeal, as it relates to the claim for an increased disability rating for CAD beginning May 29, 2018; has been granted in full, therefore there remains no case or controversy before the Board. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 20.104. 2. The criteria for entitlement to an initial disability rating of 60 percent for CAD, status post coronary artery bypass graft, beginning June 1, 2011, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.27, 4.104, Diagnostic Code 7005. 3. The criteria for entitlement to an increased disability rating of 100 percent for CAD, status post coronary artery bypass graft, beginning November 1, 2011, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.27, 4.104, Diagnostic Code 7005. 4. The criteria for service connection for left leg venous insufficiency, to include as secondary to the Veteran’s service-connected CAD, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from January 1965 to October 1968, including service in the Republic of Vietnam. Unfortunately, he died in March 2019. The Agency of Original Jurisdiction (AOJ) found that the Appellant, his surviving spouse, is an appropriate substitute claimant. This matter returns to the Board of Veterans’ Appeals (Board) after its July 2020 remand (Board Remand) to the Department of Veterans Affairs (VA) Regional Office (RO) which is the AOJ. The AOJ obtained the requested addendum medical opinions requested in the Board Remand and subsequently issued a Supplemental Statement of the Case (SSOC) in October 2020. In this SSOC, the AOJ granted the Veteran entitlement to an increased rating of 100 percent disabled for his CAD disability, effective May 29, 2018. The Board is satisfied that that the AOJ did substantially comply with the July 2020 Board Remand instructions. A Travel Board hearing was held with the Veteran in October 2018 before the undersigned Veterans Law Judge, and a copy of the hearing transcript has been added to the record. The Board also notes that a claim for an increased disability rating includes a claim for a total disability rating based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran filed a claim for TDIU. After the Veteran’s death, the claim converted to a claim for accrued benefits for the approved substitute claimant, here the Veteran’s surviving spouse. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a). In its July 2019 rating decision, the claim for accrued benefits was deferred pending further development. The AOJ has not yet rendered a decision on the claim and therefore the Board does not have jurisdiction over the matter. 38 U.S.C. § 7105; Shockley v. West, 11 Vet. App. 208 (1998). 1. Entitlement to an increased disability rating for coronary artery disease (CAD) status post coronary artery bypass graft, beginning May 29, 2018, is dismissed. In an October 22, 2020 decision, the AOJ granted the claim for an increased rating for CAD, awarding the Veteran a 100 percent disability rating beginning May 29, 2018. This constitutes a full grant of the benefits sought in the appeal and allowed by law for this disability beginning on the stated effective date. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. As a result of the award of the 100 percent disability rating for CAD, effective May 29, 2018, no case or controversy remains regarding this issue for the designated period, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). The appeal on this issue for the period beginning May 29, 2018, is no longer before the Board and therefore that part of the appeal is dismissed. 2. Entitlement to an increased disability rating of 60 percent for CAD status post coronary artery bypass graft, beginning June 1, 2011. 3. Entitlement to an increased disability rating of 100 percent for CAD status post coronary artery bypass graft, beginning November 1, 2011. The Appellant claims that the Veteran is entitled to an increased initial disability evaluation for CAD prior to May 29, 2018. In the July 2020 Board Remand, the Board noted that the severity of the Veteran’s condition had not been re-evaluated since July 2001, and requested a new, retrospective opinion as to whether the Veteran’s service-connected CAD worsened in severity between July 2011 and the time of his unfortunate death. As stated above, the AOJ granted that request at a 100 percent disability rating beginning May 29, 2018, and the Board now reviews that claim for the period prior to that award increase. By way of background, the record shows that the Veteran was admitted to CAMC on February 2, 2011, where he underwent a cardiac catherization that revealed severe 3 vessel CAD. Due to this condition the Veteran underwent a coronary artery bypass graft (CABG) surgery on February 4, 2011. He was thereafter on continuous medication for heart disease. In an October 2011 rating decision, the Veteran was granted service connection for his CAD, status post CABG, on a presumptive basis due to herbicide exposure from his service in the Republic of Vietnam. This was effective March 28, 2011, the date the Veteran filed his claim for benefits. The RO assigned an initial 3-month 100 percent temporary total disability rating due to his hospitalization for the CABG surgery. See 38 C.F.R. § 4.104, DC 7017. Thereafter, the Veteran was assigned a 10 percent disability rating for his CAD, status post CABG, as he was on continuous medication. DC 7005-7017. This rating began June 1, 2011, the first day of the month following the expiration of the 3-month CABG disability period. In an October 2020 rating decision, the AOJ granted the Veteran an increased disability rating to 100 percent due to the Veteran being diagnoses with chronic congestive heart failure. DCs 7005-7017. Increased Ratings Disability ratings are determined by evaluating the extent to which the Veteran’s service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology of the disability with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, et. seq. (38 C.F.R. Part 4). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Where service connection has been granted and the assignment of an initial rating is disputed separate ratings may be assigned for separate periods of time based on the facts found, referred to as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The Veteran’s CAD, status post CABG, is rated under 38 C.F.R. § 4.104, DCs 7005-7017. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 7005 and 7017 reflects that the Veteran’s heart disability is described as both arteriosclerotic heart disease (CAD) under DC 7005, and his CABG surgery under DC 7017. However, the assignment of separate ratings based on the same criteria is prohibited. See 38 C.F.R. § 4.14. DCs 7005 (CAD) and 7017 (CABG) are identical except for the provisions of DC 7005 which require documentation of CAD, and that of DC 7017 which permits a 100 percent rating for 3 months following hospital admission for coronary bypass surgery. Thereafter, the following rating criteria apply under both DC 7005 and DC 7017. A 10 percent rating is warranted where a workload of greater than 7 METS but not greater than 10 METS results in dyspnea, fatigue, angina, dizziness, or syncope; or when continuous medication is required. 38 C.F.R. § 4.104, DCs 7005, 7017. 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 there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure (CHF) in the past year; or a workload greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. Id. A 100 percent rating is warranted where there is chronic CHF; or a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or there is LVEF of less than 30 percent. Id. Note 2 of 38 C.F.R. § 4.104, discusses METs as follows: 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 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. Evidence of Record In a May 16, 2011 VA Primary Care treatment note, he was noted to have a LVEF of 40%, post-CABG surgery of February 4, 2011. Under DC 7005 and 7017 a 60 percent rating is warranted where there is a LVEF of 30 to 50 percent. In the report of the December 2011 VA examination of the Veteran, the examiner noted that a November 2011 stress test showed the Veteran developed dyspnea at the 1-3 METs level. A copy of that test was not attached to the examination report or file. The examiner also noted a LVEF test result of 58 percent, for a test performed on February 1, 2011. The examiner stated that due to the Veteran’s obesity he did not exert himself and therefore his LVEF is a better indication of his cardiac status than his METs level. Based on this examination and the VA examiner’s comments, the AOJ rated the Veteran’s CAD at a 10 percent level of severity. The AOJ apparently discounted the Veteran’s METs rating and relied on the cited 58 percent LVEF test result which did not qualify him for the 60 percent rating level. The Board notes the LVEF result cited by the VA examiner and relied on by the AOJ, was for a test taken prior to the Veteran’s CAGB of February 4, 2011, and therefore is not usable as a reference for the Veteran’s post-CABG cardiac status. As such, the Board must discount the examiner’s statement that the LVEF level is a better indicator than a METs testing level. The Board accepts the November 2011 workload METs level of 1-3 METs as the best indicator available of the Veteran’s cardiac status. Under DC 7005 a 100 percent rating is warranted where there is a workload of 3 METs or less. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the 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 Board finds that the evidence of record is at least in equipoise in favor of the Veteran’s claim. The claim for an increased initial rating for CAD, status post CABG, is granted beginning June 1, 2011, at a 60 percent disability rating level; and beginning November 1, 2011, it is granted at a 100 percent disability rating level. 4. Entitlement to service-connection for left leg venous insufficiency, to include as secondary to the Veteran’s service-connected CAD. The Appellant claims that that the Veteran is entitled to service connection for his left leg venous insufficiency, to include as secondary to the Veteran’s service-connected CAD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish a right to compensation for a present disability, a claimant must show: (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-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. In addition to the regulations for establishing service connection cited above, in order to establish entitlement to service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence, generally medical, establishing a nexus, or link, between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Veteran’s STRs do not contain any record of complaints of, treatment for, or diagnosis of any conditions related to lower extremity venous insufficiency. Nor are there any records of this condition developing within the year after the Veteran was discharged from military service. VA treatment records indicate a diagnosis of varicose veins in the Veteran’s lower extremities as early as August 2008. There was continued monitoring and treatment for this condition thereafter. He was eventually prescribed compression stockings for severe varicosities or venous insufficiency in 2009. The Veteran was diagnosed with CAD in February 2011 and underwent his CABG on February 4, 2011. He was granted service connection for CAD effective March 28, 2011. The Veteran was provided a VA examination in July 2011, in which the VA examiner noted that the Veteran said he had prominent veins on both legs for 6-7 years prior, and this was not caused by the surgical removal of left lower extremity vein for CABG surgery. The VA examiner opined that service connection was not warranted as these varicose veins preexisted and were not caused by the surgery to his left lower extremity related to his CABG surgery. In the July 2020 Board Remand, it was noted that the VA examiner provided a nexus opinion as to the claimed secondary cause of the disability, his CAD, but did not provide an opinion on the direct service nexus. Accordingly, the Board remanded for an addendum medical opinion on the direct service basis. VA did obtain the requested medical opinion in an October 2020 report. After review of the Veteran’s file, and making note of relevant evidence, the VA examiner opined that the condition is less likely incurred in or caused by the Veteran’s military service. The examiner stated the rationale for this opinion as there is no etiological or pathophysiological basis for the left leg venous insufficiency incurred in or caused by service. There are no competent medical opinions in evidence which state that the Veteran’s left leg venous insufficiency condition was incurred in or based by his military service or that this condition was caused by or aggravated by his CAD or CABG surgery. The Board finds that entitlement to service connection for this condition is not warranted based on the lack of entries in the Veterans’ STRs for any injury or treatment for conditions related to left leg venous insufficiency, and that the Veteran exhibited symptoms of and sought treatment for his left leg venous insufficiency several many years after he separated from the service, and more than 5 years prior to his CAD and CAB surgery. The Board finds the opinions of the VA examiners, which are against the finding of a nexus between his condition and his service and/or service-connected CAD, to be adequate and of high probative value. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Board also finds that there was substantial compliance with its remand directives. The claim for entitlement to service-connection for left leg venous insufficiency, to include as secondary to the Veteran’s service-connected CAD, is denied. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, Associate 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.