Citation Nr: 21024369 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 18-45 710 DATE: April 22, 2021 ORDER An initial rating in excess of 60 percent for atherosclerotic cardiovascular disease is denied. FINDING OF FACT At no time during the pendency of the appeal did the Veteran’s atherosclerotic cardiovascular disease result in chronic congestive heart failure (CHF), a workload of 3 metabolic equivalents (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. CONCLUSION OF LAW The criteria for an initial rating in excess of 60 percent for atherosclerotic cardiovascular disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to December 1967. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in April 2017 by a Department of Veterans Affairs (VA) Regional Office. In October 2020, the Board remanded the issue on appeal, as well as a claim for service connection for diabetes mellitus, type II, for additional development, and entitlement to an earlier effective date for the award of service connection for the Veteran’s service-connected heart disability for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). While on remand, the Agency of Original Jurisdiction (AOJ) granted service connection for diabetes mellitus, type II, in a rating decision issued in February 2021. As such constitutes a full grant of the benefits sought on appeal with regard to such issue, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Additionally, the AOJ issued a statement of the case addressing the Veteran’s earlier effective date claim in November 2020. However, as he did not perfect an appeal as to such issue, it is not before the Board. Entitlement to an initial rating in excess of 60 percent for atherosclerotic cardiovascular disease. 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board stems from June 1, 2016, the date service connection was awarded for the Veteran’s atherosclerotic cardiovascular disease. For the entire appeal period, such disability is rated as 60 percent disabling pursuant to Diagnostic Code 7005, which sets forth the criteria for evaluating arteriosclerotic heart disease. 38 C.F.R. § 4.104. In pertinent part, Diagnostic Code 7005 provides for a 100 percent rating where there is chronic CHF, or a workload of 3 METs or less result in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of less than 30 percent. A 60 percent rating is warranted where there is more than one episode of acute CHF in the past year, or a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of 30 to 50 percent. Pertinent to the evaluation of heart disabilities, one MET 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. 38 C.F.R. § 4.104. In order to receive for the Veteran to receive a rating in excess of 60 percent, the evidence must demonstrate that his service-connected heart disability results in chronic CHF, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of less than 30 percent. The medical evidence, to include VA examination reports dated in March 2017 and November 2018, does not demonstrate any findings of CHF. Additionally, such records reflect LVEF of no less than 45 percent. Further, the medical evidence of record does not demonstrate a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope. In this respect, the Board acknowledges that the medical records show exercise stress tests were largely unable to be performed as such were deemed a significant health risk. Nevertheless, the clinicians performing the examinations provided competent estimations on the basis of the Veteran’s reports of his symptoms attributable to his heart disability. Specifically, all clinicians found that, based on the Veteran’s responses, the lowest level of activity at which he developed dyspnea and angina was between 3 and 5 METs. In sum, the probative evidence of record does not reflect chronic CHF, a workload of 3 METs or less, or LVEF less than 30 percent at any time during the pendency of the appeal. Consequently, a rating in excess of 60 percent for the Veteran’s heart disability pursuant to Diagnostic Code 7005 is not warranted. The Board also has considered whether a higher or separate rating for the Veteran’s service-connected heart disability is warranted under any other potentially applicable Diagnostic Code. In this regard, the Board notes that the November 2018 VA examination report initially shows the Veteran experienced a myocardial infarction in 2007, prior to the appeal period. However, the medical history section of the report indicates that on November 27, 2018, two days prior to the VA examination, was diagnosed a myocardial infarction at a private hospital and received follow up treatment through a private provider. Further in the VA examination report, however, the VA examiner indicated the Veteran had a myocardial infarction on November 27, 2017 (emphasis added). In this regard, Diagnostic Code 7006, which addresses myocardial infarctions, provides a 100 percent rating during and for three months following a myocardial infarction documented by laboratory tests. 38 C.F.R. § 4.104. Thereafter, a 100 percent rating is warranted for the same symptomatology as designated in the rating criteria for such a rating under Diagnostic Code 7005, described in detail above. Based on the indication that the Veteran experienced a myocardial infarction during the appeal period, the Board remanded the case in October 2020 in order to obtain his private treatment records documenting such event. Pursuant to such directive, the AOJ requested that the Veteran identify or submit any private treatment records referable to his claim, to specifically include those pertaining to his claimed heart attack, in a November 2020 letter. However, the Veteran did not respond to such request, and the record does not reflect that any mail, to include the November 2020 correspondence, was returned as undeliverable. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam) (if a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence). Moreover, the Veterans VA treatment records do not document any complaints, treatment, or diagnosis referable to the incurrence of a myocardial infarction in either 2017 or 2018. Thus, the Board finds the evidence does not support the award of a higher rating under Diagnostic Code 7006. Likewise, as the evidence does not reflect diagnoses of valvular heart disease, endocarditis, pericarditis, pericardial adhesions, syphilitic heart disease, hypertensive heart disease, atrioventricular block, heart valve replacement, coronary bypass surgery, implantable cardiac pacemaker, cardiac transplantation, or cardiomyopathy related to the Veteran’s service-connected heart disability, a higher or separate rating is not warranted under Diagnostic Codes 7000-7004, 7007, 7011, or 7015-7020. In making its determination in this case, the Board acknowledges the Veteran’s belief that his heart symptoms are more severe than as reflected by the currently assigned rating. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of such condition. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected heart disability; however, the record indicates the symptomatology associated with such disability has remained stable throughout the pendency of the appeal. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his former representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that an initial rating in excess of 60 percent for the Veteran’s service-connected heart disability is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7 A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.