Citation Nr: 21011013 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 20-01 964 DATE: February 26, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent prior to December 9, 2020, for arteriosclerotic heart disease, status post coronary artery bypass graft is denied. FINDING OF FACT Prior to December 9, 2020, the Veteran’s coronary artery bypass surgery manifested a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs, continuous use of medication, no congestive heart failure, hypertrophy or dilatation with symptoms such as fatigue and dizziness. CONCLUSION OF LAW Prior to December 9, 2020, the criteria for entitlement to an initial disability rating in excess of 60 percent for arteriosclerotic heart disease, status post coronary artery bypass graft, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7017. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1966 to October 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by a VA Regional Office (RO). The Board remanded the Veteran’s request for an increased rating in September 2020 to obtain outstanding VA treatment records and to afford the Veteran an updated VA examination to determine the current severity of his service-connected arteriosclerotic heart disease (heart disease). A review of the claims file now shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, during the pendency of the appeal, a January 2021 rating decision granted the Veteran an increased disability rating of 100 percent for his service-connected heart disease, effective December 9, 2020. The increased rating constitutes a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Board further notes, that the Veteran was granted a total disability rating based on individual unemployability (TDIU) for the entire period on appeal ending with the 100 percent disability rating effective December 9, 2020. In addition, the Veteran was awarded special monthly compensation (SMC) based on housebound status effective December 9, 2020. 38 C.F.R. § 3.350. As such, the issues of TDIU and SMC will not be further addressed by the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, 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). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to an initial disability rating in excess of 60 percent prior to December 9, 2020, for arteriosclerotic heart disease, status post coronary artery bypass graft is denied. Again, the Veteran has a 100 percent rating for his heart condition, effective December 9, 2020. Prior to December 9, 2020, the Veteran’s service-connected heart disease was initially rated as 60 percent disabling under DC 7017. 38 U.S.C. § 4.104. The Veteran contends that he is entitled to a rating in excess of this initial 60 percent rating. For reasons outlined below, the Board finds no basis to award a higher initial rating prior to December 9, 2020. Under Diagnostic Code 7017, a 100 percent rating is warranted for three months following hospital admission for coronary bypass surgery. Thereafter, a 30 percent rating is assigned 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 dilatation on electro-cardiogram, echocardiogram, or x-ray. A 60 percent rating is assigned where there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. See 38 C.F.R. § 4.104, Diagnostic Codes 7017. 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. (38 C.F.R. § 4.104) The Veteran was afforded an initial VA heart conditions examination in March 2017. The examiner noted that the Veteran needed continuous medication for his heart disease with no evidence of congestive heart failure. Cardiac hypertrophy was noted on an echocardiogram with a left ventricular ejection fraction of 50 percent. The examiner conducted an interview based METs estimate of greater than 5 but not greater than 7 METs which was attributed solely to the Veteran’s heart disease. In June 2019, the Veteran was afforded another VA heart conditions examination which continued to show the use of continuous medication with no evidence of congestive heart failure. There was no noted evidence at the time of hypertrophy or dilatation with an improved left ventricular ejection fraction of 52 percent which was considered normal. An interview based METs estimate of greater than 3 but not greater than 5 METs was provided. The examiner further noted that the METs level was in part due to other co-morbid conditions such as morbid obesity and diabetic peripheral neuropathy. Thus, the examiner estimated the METs level attributed solely to his heart disease was greater than 5 but not greater than 7. The Veteran was afforded another VA heart conditions examination in December 2020 in which the examiner confirmed a diagnosis of arteriosclerotic heart disease status post coronary artery bypass graft. The examiner noted that the Veteran reported his condition has remained the same since onset. The Veteran further reported shortness of breath with physical movements. The examiner further noted the Veteran was still using continuous medication to treat his heart disease and there was no evidence of congestive heart failure. X-rays obtained as part of the examination revealed cardiomegaly (enlargement of the heart). The examiner noted that echocardiogram results from August 2020 showed a left ventricular ejection fraction of 52 percent which is considered normal. An exercise stress test was not performed because the examiner noted it was not without significant risk to the Veteran. Based on the Veteran’s report of dyspnea and dizziness, the examiner provided an interview based METs level of 1-3 METs. This MET level is consistent with daily activity of living such as eating, dressing, taking a shower, and slow walking. The examiner further noted that the estimated METs level provided was considered due solely to the Veteran’s service-connected heart disease. As noted above, the January 2021 rating decision awarded the Veteran an increased rating of 100 percent for his heart disease, in part, on his December 2020 VA examination. Prior to December 2020, however, the medical evidence does not support an increased rating in excess of 60 percent for heart disease pursuant to 38 C.F.R. § 4.104, DC 7017. The March 2017 and June 2019 VA examiners considered the medical evidence of record, the Veteran’s reported symptoms and provided estimated METs of greater than 3 based solely on the Veteran’s cardiac condition. The June 2019 examiner further explained, at the time, the Veteran’s co-morbid condition of morbidity was a contributing factor to any lower MET ratings. In addition, no VA examiner found evidence of congestive heart failure nor ejection fraction of less than 30 percent. In fact, between March 2017 and June 2019, the examiner noted a slight increase in ejection fraction from 50 to 52 percent. To the extent that the Veteran believes that a higher disability rating is warranted for his heart disease, the evidence of record, including VA examinations, does not support a disability rating in excess of 60 percent at any point during the pendency of the claim until December 9, 2020. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A higher disability rating of 100 percent would require evidence of congestive heart failure, METs testing at 1-3, or ejection fraction of less than 30 percent. None of these three criteria are shown by the available medical evidence until the most recent VA examination in December 2020. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of the Code of Federal Regulations have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In summary, the Board finds that the criteria for a disability rating in excess of 60 percent for heart disease prior to December 9, 2020 have not been met. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim for an increased rating therefore must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.