Citation Nr: 21032500 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-40 873A DATE: May 27, 2021 ORDER Entitlement to a 100 percent evaluation for ischemic heart disease, status post myocardial infarction and angioplasty, is granted from December 6, 2013 to February 1, 2014. Entitlement to a rating in excess of 30 percent for ischemic heart disease, status post myocardial infarction and angioplasty for the rating period from February 1, 2014, to March 27, 2016, is denied. From March 27, 2016, entitlement to a 60 percent rating, but no higher, for ischemic heart disease, status post myocardial infarction and angioplasty, is granted. Entitlement to an initial rating in excess of 10 percent for hypertension is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. FINDINGS OF FACT 1. Service connection was granted for ischemic heart disease, status post myocardial infarction and angioplasty, effective December 6, 2013; a 10 percent initial rating was assigned. 2. The Veteran had a myocardial infarction, documented by laboratory tests, on October 30, 2013, and is entitled to a temporary 100 percent evaluation for the three months following the myocardial infarction, ending on February 1, 2014. 3. From February 1, 2014 to March 27, 2016, ischemic heart disease, status post myocardial infarction and angioplasty, manifested cardiac hypertrophy. 4. From March 27, 2016, ischemic heart disease, status post myocardial infarction and angioplasty, has manifested in left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 5. Throughout the period on appeal, the Veteran's hypertension was manifested by diastolic blood pressure readings which were predominantly below 110, systolic blood pressure readings which were predominantly below 200, and has required continuous medication for control. CONCLUSIONS OF LAW 1. From December 6, 2013 to February 1, 2014, the criteria for a temporary 100 percent evaluation following the Veteran's myocardial infarction have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Codes 7005, 7006. 2. From February 1, 2014 to March 27, 2016, the criteria for an evaluation in excess of 30 percent prior for ischemic heart disease, status post myocardial infarction and angioplasty, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 3. From March 27, 2016, the criteria for an evaluation of 60 percent for ischemic heart disease, status post myocardial infarction and angioplasty, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 4. The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to August 1975, and from January 1978 to September 1983. This appeal stems from a September 2014 rating decision issued by a VA Regional Office (RO). The Veteran filed a timely Notice of Disagreement and the RO issued a Statement of the Case (SOC) in June 2016. The did not file a VA Form 9, Appeal to Board of Veterans' Appeals, on the appropriate form prescribed by the Secretary. However, in August 2016, the Veteran submitted statement in which he indicated that he wished to appeal his claims for an increased evaluation for heart disease and service connection for obstructive sleep apnea. We note that the Veteran indicated he did not wish to appeal the issue of entitlement to a rating in excess of 10 percent for hypertension. See August 2, 2016 Correspondence. As this correspondence was received within 60 days of the June 2016 SOC which denied entitlement to a rating in excess of 30 percent for ischemic heart disease, a rating in excess of 10 percent for hypertension, and service connection for sleep apnea, the RO interpreted the correspondence as an informal substantive appeal. For claims filed prior to March 24, 2015, an informal appeal is permissible so long as it consists of a written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. §§ 3.1, 3.155, 3.160 (2014). As such, the Veteran's informal appeal is permissible, and the Board has jurisdiction over the claims. The Board has also accepted jurisdiction over the instant matter on two separate occasions. See Percy v. Shinseki, 23 Vet. App. 37, 47 (2009) (when VA has consistently treated a matter as being in appellate status for an extended period, VA waives any subsequent objections to the exercise of jurisdiction). These matters return to the Board of Veterans' Appeals (Board) following December 2018 and September 2020 remands for additional development. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Whether the Board's prior remand instructions have been substantially complied will be discussed in further detail below. RATINGS 1. Ischemic heart disease. The Veteran seeks an initial rating of more than 30 percent for his service-connected ischemic heart disease, status post myocardial infarction and angioplasty. After reviewing the evidence, the Board concludes that a rating greater than 30 percent is not warranted before March 27, 2017. A 60 percent rating, but no higher, is warranted thereafter. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of a veteran. 38 C.F.R. § 4.3. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Veteran's ischemic heart disease is currently assigned a 30 percent evaluation under Diagnostic Code 7005, which pertains to arteriosclerotic heart disease (coronary artery disease). Diagnostic Code 7006, which pertains to myocardial infarction, is also relevant to the instant matter. Under Diagnostic Codes 7005 and 7006, a 30 percent evaluation is warranted for a workload of 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. 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 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Further, Diagnostic Code 7006 provides a 100 percent evaluation during and for three months following myocardial infarction, documented by laboratory tests. See 38 C.F.R. § 4.104, Diagnostic Codes 7005, 7006. A note prior to the Diagnostic Code explains that 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. See 38 C.F.R. § 4.104, Note (2). i. Rating period before March 27, 2016. After considering the evidence, the Board finds that a 100 percent evaluation should be assigned until February 1, 2014 under Diagnostic Code 7006 following the Veteran's October 30, 2013 myocardial infarction. Thereafter, until March 27, 2016, a 30 percent evaluation is warranted. (In addition, the 100 percent evaluation with his other disabilities qualify for SMC at the housebound rate for such limited time period.) Prior to the effective date of the grant of service connection, the Veteran's heart disease manifested as a myocardial infarction on October 30, 2013. Private treatment records show the Veteran arrived at an emergency room by ambulance with complaints of chest pain and pressure. He was admitted to Palmdale Regional Medical Center and initially assessed with acute coronary syndrome. He underwent cardiac catheterization, left ventriculography, and coronary angiography which showed a complete obstruction of the first obtuse marginal artery. The overall left ventricular ejection fraction was "about 60%." The November 2, 2013 discharge summary shows a final diagnosis of acute myocardial infarction and obstruction of the right coronary artery. Shortly thereafter, the heart diseae was recognized as service-connected. As explained above, Diagnostic Code 7006 allows a 100 percent evaluation during and for three months following myocardial infarction. The Veteran's ischemic heart disease, status post myocardial infarction and angioplasty, is more equitably and accurately ratable under Diagnostic Code 7006 for the three-month period following the October 30, 2013 myocardial infarction. As such, a 100 percent evaluation is warranted until February 1, 2014, three months after the myocardial infarction. Obviously, the award may not predate the effective date of the grant of service connection. However, part of the temporary evaluation overlaps the effective date of service connection. Thereafter, a 30 percent evaluation, but no higher, is warranted during this time frame. As noted above, the October 30, 2013 private treatment records reflect left ventricular ejection fraction was approximately 60 percent. The Veteran was provided a VA heart conditions disability benefits questionnaire examination in June 2014. The examiner assessed ischemic heart disease and noted coronary artery disease and the October 2013 myocardial infarction. The Veteran did not have congestive heart failure. Cardiac hypertrophy was documented on a June 2014 echocardiogram. The echocardiogram showed a left ventricular ejection fraction of 62 percent. An interview-based MET test showed the Veteran did not complain of symptoms such as dyspnea, fatigue, angina, dizziness, or syncope. The examiner estimated the Veteran's METs were greater than 7 but not greater than 10. There are no other relevant treatment records available for the period prior to March 27, 2016. We note that the Agency of Original Jurisdiction initially assigned a 30 percent evaluation due to the cardiac hypertrophy documented in the June 2014 echocardiogram. Prior to March 27, 2016, there is no evidence of acute congestive heart failure, a workload of greater than 3 METs but less than 5 METs resulting in pertinent symptoms, or of left ventricular dysfunction resulting in ejection fraction of 50 percent of less during this period. As such, an evaluation in excess of 30 percent for the rating period from February 1, 2014 through March 27, 2016 is not warranted. ii. Rating period from March 27, 2016. Private cardiology treatment records dated March 27, 2016 show the Veteran underwent cardiac catheterization, left and right coronary angiography, and left ventriculography. The ventriculography showed an ejection fraction of 50 percent. The Veteran was provided a VA examination for heart conditions in September 2019. The Veteran reported fatigue with exertion. There was no history of congestive heart failure. The examiner referred to a May 20, 2016 exercise stress test that showed mild to moderate myocardial ischemia, an ejection fraction of 61 percent, and METs of 7 to 10. The estimated workload was 7 to 10 METs based on an interview of the Veteran and his reports of dyspnea and fatigue with activity. Private cardiology records dated September 28, 2019 reflect the Veteran had a carotid ultrasound which showed markedly decreased velocity in the left vertebral artery. The Veteran underwent a pharmacological myocardial perfusion study on September 30, 2019, which showed the left ventricular ejection fraction was 48 percent. Based on the foregoing, the Board finds that a 60 percent evaluation for ischemic heart disease, status post myocardial infarction and angioplasty is warranted from March 27, 2016. We acknowledge that the Veteran's left ventricular dysfunction ejection fraction likely did not descend to 50 percent or below on March 27, 2016, the exact date of his nuclear stress testing. However, the available medical relevant records do not contain affirmative evidence that the Veteran's ejection fraction was 50 percent or below prior to March 27, 2016. Prior records show a left ventricular ejection fraction of 62 percent in June 2014, which is affirmative evidence that left ventricular ejection fraction was not at a level warranting a 50 percent evaluation. The first objective medical evidence of such dysfunction is the March 27, 2016 ventriculography results, showing an ejection fraction of 50 percent. We note that the September 2019 VA examiner referred to an exercise stress test performed on May 20, 2016 that showed mild to moderate myocardial ischemia and an ejection fraction of 61 percent. Such test results have not otherwise been identified or associated with the record. The Board's prior September 2020 remand instructions requested that any such testing be associated with the claims file. No such records were ever identified or provided. However, the Veteran did provide the March 27, 2016 ventriculography, performed two months prior to the alleged May 2016 stress test, which shows an ejection fraction of 50 percent. Furthermore, the September 30, 2019 myocardial perfusion study shows an ejection fraction of 48 percent. The preponderance of the evidence shows the Veteran's heart disease has manifested in an ejection fraction of 30 to 50 percent from March 27, 2016 forward, squarely within the criteria for a 60 percent evaluation. Regarding a 100 percent evaluation, there is no evidence of chronic congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope, or left ventricular dysfunction with ejection fraction of less than 30 percent. Accordingly, an evaluation in excess of 60 percent is not warranted. In reaching our decision, we acknowledge that the Board's September 2020 remand instructions, which requested that the Veteran execute a VA Form 21-4142 for all providers he has seen for his ischemic heart disease, that all medical records be obtained from all providers identified, and that a VA examiner to describe all of the symptoms related to the Veteran's ischemic heart disease throughout the period on appeal, to include the results of any and all metabolic equivalent testing. A VA Form 21-4142 was sent to the Veteran in September 2020. He did not respond. An opinion was obtained in January 2021. The examiner reviewed the claims file and noted that, although a medical records request had been made in September 2020, new records or archived records from a cardiologist were not sent to claim file. The medical records in the claims file are as related by the Veteran, except for a Transthoracic Echocardiogram (EEG), which was completed at West LA VA in 2013, and an interview-based METS completed by the examiner in 2019. The examiner concluded she was unable to provide more information because there is no more information pertaining to the Veteran's cardiac condition available in the chart or claims folder from 2013 to present. We find that there was substantial compliance with the Board's September 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was provided with the VA Form 21-4142, which he did not return, and the examiner provided an opinion available records were identified, and the examiner provided an opinion based on the available evidence. See Wood v. Derwinski, 1 Vet. App. 190, 192 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.") However, additional private records submitted to the Board in March 2021, which include the March 2016 and September 2019 private cardiology records, reflect that a 60 percent evaluation but no higher is warranted effective March 27, 2016. 2. Hypertension. The Veteran seeks a rating in excess of 10 percent for hypertension. He filed this increased rating claim in May 2013. Hypertension is rated under Code 7101, which provides for a 10 percent rating if diastolic pressures are predominantly 100 or more, or systolic pressures are predominantly 160 or more, or as a minimum evaluation where there is a history of diastolic pressures predominantly 100 in an individual who requires continuous medication for control. A 20 percent rating is warranted if diastolic pressures are predominantly 110 or more, or; systolic pressures are predominantly 200 or more. A 40 percent rating is warranted if diastolic pressures are predominantly 120 or more. A 60 percent rating is warranted if diastolic pressures are predominantly 130 or more. See 38 C.F.R. § 4.104, Diagnostic Code 7101. After considering the evidence, the Board concludes a rating higher than 10 percent for hypertension is not warranted. The Veteran was afforded a VA examination for hypertension in June 2014. The Veteran's treatment plan included taking continuous medication, including amlodipine and lisinopril. Blood pressure readings were 146/68, 138/76, and 140/74. The Veteran reported no symptoms attributable to hypertension. He was provided another VA examination for hypertension in September 2019. He took blood pressure medications daily. Blood pressure readings were 120/72, 133/83, and 119/82. Private and VA medical treatment records contain blood pressure readings. While the Veteran's blood pressure readings fluctuate, the readings are consistent with the readings in the VA examinations, and there are no diastolic or systolic pressures warranting a rating higher than the current 10 percent. Specifically, treatment records do not demonstrate diastolic pressures that are predominantly 110 or more, or systolic pressures that are predominantly 200 or more, which are the criteria for a 20 percent evaluation. Regarding 40 and 60 percent evaluations, during the period on appeal diastolic pressure readings have not been 120 or 130 or more. In September 2020, the Board remanded the instant claim to request the Veteran complete a VA Form 21-4142 for all providers he has seen for his hypertension, and to obtain an opinion from the September 2019 VA examiner regarding whether the Veteran's diastolic pressure has been predominantly 110 or more, or his systolic pressure predominantly 200 or more; or whether his diastolic has predominantly been 120 or more; or whether his diastolic pressure has predominantly been 130 or more since May 2012. A VA Form 21-4142 was sent to the Veteran in September 2020. He did not respond. An addendum opinion was provided in December 2020. The examiner determined that a review of the Veteran's medical records since May 2012 has not shown a systolic pressure "predominantly >/= 200 or a diastolic pressure predominantly >/= 110." We find that there was substantial compliance with the Board's September 2020 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran asserts that his systolic blood pressures would occasionally spike to above 200 without his medications. See February 2021 Correspondence. However, the objective medical evidence does not show diastolic pressures of 110 or more, or systolic pressures of 200 or more, at any point relevant to the period on appeal. Such are required for a rating of 20 percent. We also note that a 10 percent evaluation under Diagnostic Code 7101 contemplates hypertension that requires constant medication. Here, the evidence shows blood pressure readings consistent with a 10 percent rating and that the Veteran's hypertension requires continuous medication for control. The schedular criteria for a 20 percent or greater rating for hypertension have not been approximated at any point relevant to the period on appeal. A rating greater than 10 percent is not warranted. The preponderance of the evidence is against this claim, and the benefit sought on appeal must be denied. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. The Veteran was diagnosed with sleep apnea in July 2014. In an August 2014 VA examination report, the examiner opined that the Veteran's diagnosed sleep apnea was less likely than not related to service. In a July 2018 brief, the Veteran, through his representative, stated that his service-connected posttraumatic stress disorder (PTSD) and ischemic heart disease caused or aggravated his sleep apnea. The Board remanded this claim in December 2018 and September 2020 to obtain VA medical opinions as to whether the Veteran's sleep apnea was caused or aggravated by his service-connected PTSD with depression, ischemic heart disease, and/or hypertension. The most recent VA medical opinion was obtained in November 2020. The opinion addresses whether sleep apnea was caused by PTSD, hypertension, and ischemic heart disease. The opinion also addresses whether hypertension or heart failure aggravate sleep apnea. However, no opinion was rendered as to whether the Veteran's PTSD with depression aggravates his sleep apnea. The November 2020 VA opinion need to be supplemented with an opinion addressing whether the Veteran's obstructive sleep apnea is at least as likely as not aggravated by his service-connected PTSD with depression. Barr v. Nicholson, 21 Vet. App. 303, (2007); Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the November 2020 opinion regarding the Veteran's obstructive sleep apnea. If the same VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. 2. The examiner should provide an opinion as to whether it is at least as likely as not (50% probability or more) that the Veteran's obstructive sleep apnea was aggravated by his service-connected PTSD with depression. A complete rationale should be given for all opinions and conclusions expressed. If aggravation is found, the examiner should state the baseline level of disability prior to aggravation and quantify the degree of aggravation, if possible. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morse 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.