Citation Nr: 21013221 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-40 506 DATE: March 9, 2021 ORDER Entitlement to an initial disability rating in excess of 60 percent for coronary artery disease (CAD) status post myocardial infarction (MI) is denied. FINDING OF FACT The Veteran’s CAD status post MI did not manifest as congestive heart failure, a workload of 3 METs or less, a left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent, or a MI within the appellate period. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 60 percent for CAD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.100, 4.104, Diagnostic Code (DC) 7005, 7006. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for CAD and assigned a disability rating of 60 percent. A Board hearing was held in July 2015. A transcript is of record. In November 2019, VA notified the Veteran that the Veterans Law Judge (VLJ) who conducted the hearing was no longer employed by the Board and that he had a right to another hearing. The letter indicated that if the Veteran did not respond within 30 days, the Board would assume he did not want a second hearing. The Veteran did not submit a response or has otherwise indicated he wanted a new hearing. In March 2016, November 2017, and March 2020, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded the claim to supplement the record with missing VA treatment records and afford the Veteran a current and adequate VA examination. The Board finds there has been substantial compliance with its remand directives, and the claim is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Indeed, VA treatment records from 1986 to September 2020 have been associated with the evidentiary record. See July 2016 and September 2020 VA treatment records. These records include results of a July 2015 nuclear stress test and VA treatment records from August 2001 and September 2011. See February 2020 appellate brief. Further, the Veteran was afforded a new VA examination in April 2020. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. The Veteran maintains that his CAD status post myocardial infarction (MI) is worse than his disability rating indicates. DC 7005, for CAD, provides for a 30 percent evaluation for a workload of greater than five METs but not greater than seven METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. 38 C.F.R. § 4.104, DC 7005. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. DC 7006, for MI, provides for a 100 percent disability rating during and for three months after a MI. 38 C.F.R. § 4.104, DC 7006. Thereafter, with a documented history of MI, the rating criteria are the same as they are for CAD, DC 7005. Id. The Veteran last had an MI in 1989. See June 2012 VA examination report, Board hearing Tr. at 3. Treatment records show that the Veteran has consistently denied another MI and he has not otherwise had another MI since 1989. See VA treatment records. The Veteran has not had congestive heart failure. See April 2020 VA treatment records; June 2012 and April 2020 VA examination reports. Stress tests within the appellate period reveal that the Veteran’s METs level was consistently greater than 3, less than 5, and was solely due to his heart condition. Id.; see April 2020 VA treatment records; Board Hearing Tr. at 6, 19. Further, VA treatment records and examination reports show that the Veteran’s LVEF ranged between 46 and 71 percent. Id.; see also June 2012 and April 2020 VA examination reports. Thus, the Board finds the preponderance of the evidence is against a finding that the Veteran’s CAD manifested congestive heart failure, a workload of 3 METs or less, a LVEF of 30 percent or less, or a myocardial infarction within the appellate period. Based on Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), the Board has also considered whether staged ratings are appropriate. Since, however, the Veteran’s symptoms have remained constant at 60 percent levels for CAD status post MI, staged ratings are not warranted. Accordingly, the Veteran’s service-connected CAD did not meet the criteria corresponding to a higher 100 percent rating under DCs 7005 or 7006 and his claim is therefore denied. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.