Citation Nr: 21029280 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-36 851 DATE: May 13, 2021 ORDER Entitlement to an increased initial evaluation in excess of 10 percent from February 8, 2016 to October 14, 2020 for coronary artery disease status post bypass graft is denied. Entitlement to an increased evaluation in excess of 30 percent from October 14, 2020 for coronary artery disease status post bypass graft is denied. FINDINGS OF FACT 1. For the period from February 8, 2016 to October 14, 2020, the Veteran's coronary artery disease was manifested of medical evidence indicating a workload of no less than 7 metabolic equivalents (METs), with dyspnea, fatigue, angina, dizziness or syncope; continuous medication is required, and neither congestive heart failure nor left ventricular dysfunction was shown. 2. For the period from October 14, 2020, the Veteran's coronary artery disease was manifested of medical evidence indicating a workload of greater than 5 METs but not greater than 7 METs with dyspnea, fatigue, angina, dizziness or syncope; left ventricular dysfunction was shown with an ejection fraction of 66 percent and continuous medication was required; congestive heart failure was not shown. CONCLUSIONS OF LAW 1. The criteria for the assignment of a disability evaluation in excess of 10 percent for service-connected coronary artery disease for the period from February 8, 2016 to October 14, 2020 are not met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7017 (2020). 2. The criteria for the assignment of a disability evaluation in excess of 30 percent for service-connected coronary artery disease for the period from October 14, 2020 forward are not met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7017 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1962 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board remanded the issues on appeal for additional development in August 2020. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). By way of background, in a November 2018 rating decision, the evaluation for the coronary artery disease was originally granted with a noncompensable evaluation effective from February 8, 2016. The Veteran filed a notice of disagreement with that rating decision regarding that evaluation, and in a May 2019 rating decision, the Veteran's rating for his coronary artery disease was increased to 10 percent, effective from February 8, 2016. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Board notes the Veteran meets the schedular eligibility but has never asserted that his service-connected disabilities prevent him from gaining and maintaining suitable employment. There is no further lay or medical evidence that the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board thus finds that TDIU and/or SMC entitlement is not inferred by the record, and as such will not be discussed. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Ratings - General Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity." See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). The assignment of a particular diagnostic code 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 current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Veteran is competent to provide evidence of observable symptoms, including pain. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). See also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving this appeal. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Coronary Artery Disease Legal Criteria The Veteran is currently rated under Diagnostic Code 7017 for his coronary artery disease status post bypass graft, currently with a 10 percent rating from February 8, 2016 to October 14, 2020, and a 30 percent rating from October 14, 2020 forward. Under Diagnostic Code 7017, a 10 percent rating is warranted for a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required. 38 C.F.R. § 4.104, DC 7017 (2020). A 30 percent rating is warranted if a workload between 5 and 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilatation. Id. A 60 percent rating is warranted if there had been more than one episode of acute congestive heart failure in the past year; or if a workload between 3 and 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30-50 percent. Id. A 100 percent rating is warranted if there is chronic congestive heart failure; or if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The Veteran filed a claim for service connection for his coronary artery bypass status post bypass graft in February 2016. Medical records submitted with the claim indicate the Veteran underwent a five-vessel bypass in 2005. Records submitted in April and September 2016 by the Veteran and authored by his cardiologist, Dr. P.K., regarding his recent cardiac care show pertinent diagnoses of paroxysmal atrial fibrillation, aortic insufficiency, congestive heart failure, coronary artery disease, and hypertension. No specific evaluation elements such as EKGs, ejection volume or metabolic equivalents were noted. VA provided a medical opinion based on the private cardiologist's records in November 2018. This VA examiner noted diagnoses of coronary artery disease and hypertensive heart disease, and also noted that METs were not estimated because the Veteran denied any coronary artery disease symptoms on any physical level of activity in the METs testing. An ECG showed mild to moderate aortic valvular regurgitation with an ejection fraction volume of 60 percent. VA provided a VA examination for his service-connected coronary artery disease and related disabilities in September 2020, which was uploaded to the claims file in October 2020. This examiner noted diagnoses of coronary artery disease, valvular heart disease, and paroxysmal atrial fibrillation. Continuous medication was required for the Veteran's heart disabilities, but he did not have congestive heart failure and had not had a myocardial infarction. He did have cardiac arrhythmia in the form of atrial fibrillation that was intermittent and paroxysmal. The number of incidents in the last 12 months was zero. The Veteran was assessed to have a moderate aortic valve insufficiency, but had no infectious heart conditions or pericardial adhesions. There was no evidence of cardiac hypertrophy or cardiac dilatation. An EKG was performed and was assessed as normal, as was a chest x-ray. An echocardiogram indicated a left ventricular ejection fraction (LVEF) of 66 percent, noting normal wall thickness and moderate aortic valve insufficiency. An exercise stress test was performed as part of the overall examination and the test did not indicate any ischemia. Interview-based METs were considered to be greater than 5 to 7 METs, consistent with activities such as walking one flight of stairs, golfing, mowing the lawn, or heavy yard work. The examiner noted the Veteran's heart conditions and symptoms limited his ability to work due to the limitations of any activity requiring exertion. This same VA examiner provided an addendum opinion in December 2020 derived from the September/October VA examination to clarify a diagnosis of paroxysmal arterial fibrillation and possible secondary service connection for the Veteran as a separate disability. Service connection was granted in a December 2020 rating decision with a noncompensable evaluation, effective from February 8, 2016, and this issue is not on appeal here. While the Veteran has asserted that his cardiac condition and symptoms are worse than the ratings he received in November 2018, there is no evidence from any medical examiner or authority that substantiates ratings in excess of those determined. The Veteran is certainly capable of describing symptoms at the time that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's lay statements are competent and probative as to the description of symptoms. Generally, lay evidence is probative with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence on its own can be sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Additionally, a lay person may speak in some limited circumstances in which a symptom is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to status and severity in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). Here, the Veteran is not a medical professional and is not competent to diagnose or interpret cardiac symptoms beyond their description to a medical professional. Id. The evaluation of a cardiac condition is a complex medical determination beyond his competence. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value, and are outweighed by the competent and probative VA examinations and opinions. See McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006); Bostain v. West, 11 Vet. App. 124 (1993). 1. Entitlement to an increased initial evaluation in excess of 10 percent from February 8, 2016 to October 14, 2020 for coronary artery disease status post bypass graft. In light of the foregoing, the Board finds that the criteria for the assignment of a rating in excess of 10 percent is not warranted for the Veteran's coronary artery disease from February 8, 2016 to October 14, 2020. VA treatment notes and private medical records for this period show the requirement for continuous medication. Objective medical evidence in this period shows ejection fraction being in the range of greater than 50 percent and METs testing greater than ten. The Veteran during this period denied symptoms of dyspnea, fatigue, angina, dizziness, or syncope with any level of physical activity. A higher evaluation of 30 percent in this period prior to October 14, 2020 is not warranted unless there is workload greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. 2. Entitlement to an increased evaluation in excess of 30 percent from October 14, 2020 for coronary artery disease status post bypass graft. For the period from October 14, 2020 forward, the Board finds that a rating in excess of 30 percent is not warranted for the Veteran's coronary artery disease. During this period, there is objective medical evidence of borderline left ventricular hypertrophy and a mildly dilated left atrium. No congestive heart failure is noted. An evaluation of 30 percent is assigned if there is a workload greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation. A higher evaluation of 60 percent is not warranted unless there is more than one episode of acute congestive heart failure in the past year, or a workload greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Since the effective date of service connection, in either period on appeal, the Veteran has not been diagnosed with congestive heart failure, his METS has never been less than 5, his ejection fraction has never been less than 50 percent, and the Veteran has not been diagnosed with congestive heart failure. The Board is also cognizant of language in 38 C.F.R. § 4.104, Diagnostic Code 7017, Note, that states if nonservice-connected arteriosclerotic heart disease is superimposed on service connected valvular or other non-arteriosclerotic heart disease, to then obtain a medical opinion as to which condition is causing the current signs and symptoms. The Board notes the Veteran's arteriosclerotic heart disease, diagnosed here as coronary artery disease, is service-connected and that he has only one other cardiac disability considered as due to the service-connected coronary artery disease, the paroxysmal arterial fibrillation. The VA examiner opined in the October 2020 VA examination that the discussed symptoms all derive from the coronary artery disease. That paroxysmal arterial fibrillation is now separately service-connected since a December 2020 rating decision and effective from February 8, 2016, the same effective date as the coronary artery disease. There is no other diagnosed heart disease that would require such an opinion. Therefore, the Board finds that the preponderance of evidence is against assigning a rating in excess of 10 percent from February 8, 2016 to October 14, 2020, or a rating in excess of 30 percent from October 14, 2020 forward for the Veteran's coronary heart disease disability. See 38 C.F.R. § 4.104, Diagnostic Code 7017 (2020); see also 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation for the Veteran's coronary heart disease other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted, except as noted in the discussion above. See Hart, 21 Vet. App. at 505. Neither the Veteran nor his representative has raised any other issues concerning the cardiac disability, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.