Citation Nr: 21009241 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 16-51 335 DATE: February 22, 2021 ORDER A rating in excess of 10 percent for a heart disease, to include a higher evaluation on extra-schedular basis is denied. FINDING OF FACT 1. The Veteran’s heart disease is not shown to have caused workload less than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or caused cardiac hypertrophy or dilatation; or caused left ventricular dysfunction with an ejection fraction (LVEF) no greater than 50 percent; or caused any episode of congestive heart failure. 2. The evidence is insufficient to show that the Veteran’s heart disease has caused marked interference with employment, frequent periods of hospitalization, or other impairments sufficient to render the schedular evaluation inadequate. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a heart disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2007 to August 2015. He is currently rated at 10 percent for his arteriosclerotic coronary artery disease under Diagnostic Code 7005, and he is seeking a higher rating. An October 2018 Board decision noted that the then medical records (including a March 2015 VA examination) did not support a rating in excess of 10 percent. Given the Veteran’s extraordinary athletic capability (as a world class runner), the Board remanded the issue to the Director of the VA Compensation and Pension Service for extraschedular consideration. In May 2020, the VA Executive Director of Compensation Service issued an Advisory Opinion that the evidence did not support a higher evaluation on an extra-schedular basis for the Veteran’s arteriosclerotic coronary artery disease. The Director explained that the preponderance of evidence did not show the heart condition has resulted in frequent hospitalization or marked interference with employment, nor does it establish that the regular rating criteria is inadequate in evaluating this condition. In June 2020, the Veteran submitted a lay statement that his heart condition had caused interference with his employment in that he had used up all his sick leave and annual leave for medical appointments and that he had to take leave without pay (LWOP) to deal with his heart condition. The Veteran also submitted his leave record from October 2015 to June 2020 to support his statement. The leave record shows that the Veteran took eight-hours of leave on December 5, 2019 for a scheduled coronary angiogram procedure at Beaumont Hospital because his cardiologist found a possible cardiac obstruction on November 25, 2019. He also requested a potential eight-hour leave on December 6, 2019 for overnight hospital observation in case a stenosis was found by the coronary angiogram. A July 2020 Board decision remanded the case for further developments to include conducting a VA examination and obtaining private treatment records regarding the Veteran’s heart condition, such as the treatment records and testing results in November 2019 and coronary angiogram procedure in December 2019. Such developments have been completed. Schedular Rating The Veteran’s heart disease is rated under Diagnostic Code 7005 (arteriosclerotic heart disease/coronary artery disease), which provides that: A 10 percent rating is assigned for workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is assigned for workload of greater than 5 METs but not greater than 7 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating contemplates more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of 30 percent to 50 percent. A 100 percent rating is warranted for coronary artery disease resulting in chronic congestive heart failure; or, workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is LVEF of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. VA examination in March 2015 showed that the Veteran had 23 METs and LVEF greater than 55 percent without cardiac hypertrophy or dilatation or congestive heart failure. VA examination in September 2020 showed that the Veteran was taking continuous medication to control his heart disease, however, he has not required hospitalization for the treatment of his heart condition, nor has his heat disability resulted in congestive heart failure. An echocardiogram in September 2020 showed LVEF of 70 percent, without evidence of cardiac hypertrophy or dilatation. METs test was not performed during the examination, because the Veteran denies experiencing symptoms attributable to a cardiac condition with any level of physical activity, and did not report any fatigue, angina, or dizziness. The examiner indicated that the Veteran’s heart disease did not impact his ability to work. VA treatment records did not show symptoms that are more severe than those reflected during the VA examinations that will qualify him for a higher rating. For example, records in December 2016 showed METs of 13.4, and records in January 2017 revealed ejection fraction (EF) of 60 – 65 percent. Private treatment records showed that the In November 2019, the Veteran reported shortness of breath with extreme exercise, but reported that he could still jog three to five miles a day. The physician was concerned about angina. CATH (Cardiac catheterization) in December 2019 revealed a widely patent stent, but otherwise normal coronary arteries with EF of 60 to 70 percent. Records also revealed an EF of 65 percent in August 2016, 64 percent in May 2015 and 55 percent in June 2018. As such, the evidence does not show that the Veteran’s heart disease has caused workload less than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or caused cardiac hypertrophy or dilatation; or caused left ventricular dysfunction with an ejection fraction (LVEF) no greater than 50 percent; or caused any episode of congestive heart failure. A rating in excess of 10 percent under DC 7005 is not warranted. Extraschedular Rating The Veteran is seeking higher ratings for his heart disease on an extraschedular basis. He has argued that the schedular rating criteria does not adequately compensate for his particular heart condition, because he has an exceptional heart as evidenced by his being a former world class miler. At his hearing, he explained that his resting heart beat was simply lower than the average person, meaning that the Diagnostic Code would not accurately track the limitations caused by his heart problems. To be considered for extraschedular evaluation, there must have evidence showing that (1) the schedular rating criteria do not contemplate the veteran’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors that are consistent with an extraschedular rating, such as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b), Thun v. Peake, 22 Vet. App. 111, 115-116 (2008). In May 2020, the VA Executive Director of Compensation Service issued an Advisory Opinion that the evidence did not support a higher evaluation on an extra-schedular basis for the Veteran’s arteriosclerotic coronary artery disease. The Director explained that the preponderance of evidence did not show the heart condition has resulted in frequent hospitalization or marked interference with employment, nor does it establish that the regular rating criteria is inadequate in evaluating this condition. The Director indicated that while the Veteran was hospitalized at times, these appear to be overnight stays for evaluation purpose rather than additional surgical intervention. In June 2020, the Veteran submitted a lay statement that using METs to evaluate his heart disease was not fair, because being a competitive athlete, he used to have METs of 23-24, which was now reduced to 14 due to his heart disease. In addition, he contends that his heart condition had caused interference with his employment in that he used up all his sick and annual leave for medical appointments and that he had to take leave without pay (LWOP) to deal with his heart condition. The Veteran also submitted his leave record from October 2015 to June 2020 to support his statement. The Veteran also submitted a private opinion in June 2020, stating that although 14 METS represented a very good level of fitness in general, in the Veteran’s case, represented a severe impairment compared to his exceptional level of fitness at baseline, and using METs was highly likely to result in an inaccurate assessment of the impact of CAD on his functional capacity. The Board recognizes that using METs may not accurately assess the loss of the Veteran’s heart functionality due to his exceptional level of fitness prior to the onset of his heart disease, however, METs is not the only criterium to evaluate his CAD. For example, evidence of cardiac atrophy or dilatation, ejection fraction, and episode of congestive heart failure all could be used as alternative criteria to evaluate his CAD. However, even using the alternative criteria, a higher rating cannot be assigned. Even assuming that the schedular rating criteria are inadequate to evaluate the Veteran’s heart disease, to be entitled to an extra-schedular evaluation, the evidence must also show that the Veteran’s heart disease has caused other hallmarks of an extraschedular rating such as marked interference with employment or frequent periods of hospitalization. Here, while the evidence show that the Veteran has been hospitalized, these hospitalizations are not frequent, and they are for purpose of evaluation rather than treatment interventions such as surgeries. While the leave record from October 2015 to June 2020 did show that the Veteran took leave on a number of occasions, to include LWOP (leave without pay) for medical reasons, these leaves were not taken solely for his cardiac appointment, they were taken for treating other medical conditions too, such as psychiatric and gastrointestinal conditions, as well for family reasons. The total leave hours specially noted for cardiology appointments during 2015 to 2020 is 79.5 hours, approximately 16 hours per year (equivalent to two full working days). As such, the leave records did not show marked interference with his employment due to heart conditions. In addition, the medical records show that although the Veteran’s ability to perform extreme exercise is limited by his heart condition, he can still jog three to five miles a day, and there is no indication that his ability to perform his job has been otherwise limited by his heart disability. The September 2020 VA examiner indicated that the Veteran’s heart disease did not impact his ability to work. As the evidence does not show that the Veteran’s heart disease has caused marked interference with employment or frequent periods of hospitalization which rendered his diabetes so exceptional and usual that evaluation under the schedular rating is inadequate, extraschedular consideration for a rating in excess of 10 percent for a heart disease is not warranted. Accordingly, a rating in excess of 10 percent for a heart disease, to include a higher evaluation on extra-schedular basis is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.