Citation Nr: 21041251 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 14-02 812 DATE: July 8, 2021 ORDER Entitlement to an increased 60 percent disability rating, but no higher, for service-connected mitral valve prolapse with slight regurgitation and coronary artery disease (a heart disability), from February 27, 2020, is granted. Entitlement to a disability rating in excess of 30 percent for a service-connected heart disability prior to February 27, 2020 is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to a service-connected disability or disabilities, is remanded. Entitlement to a disability rating in excess of 10 percent for service-connected for degenerative spondylarthritis lumbar spine with chronic low back strain (a low back disability) is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected bronchial asthma with sleep apnea is remanded. FINDINGS OF FACT 1. From February 27, 2020, the probative evidence reflects that the Veteran's heart disability manifested dyspnea at a workload greater than 3 METs but no greater than 5 METs. It has not been shown to be productive of chronic congestive heart failure, a workload of 3 METs or less, or left ventricular ejection fraction (LVEF) of less than 30 percent. 2. Prior to February 27, 2020, the probative evidence does not reflect that the Veteran's heart disability manifested dyspnea, fatigue, angina, dizziness, or syncope at a workload of 5 METs or less, and there was no evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent, or more than one episode of active congestive heart failure in the past year. CONCLUSIONS OF LAW 1. The criteria for a 60 percent disability rating, but no higher, for a service-connected heart disability from February 27, 2020 have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005-7000. 2. The criteria for disability rating in excess of 30 percent for a service-connected heart disability prior to February 27, 2020 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005-7000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) from September 2010 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before a Veterans Law Judge (VLJ) in February 2021. A transcript of the hearing is of record. As this VLJ is no longer employed at the Board, the Veteran was offered the opportunity to testify at another hearing by a May 2021 letter. As the Veteran did not respond with a request for another optional Board hearing within 30 days of the letter, the Board will proceed based on the evidence of record. The Board also notes that additional VA medical records have been added to the claims file since the December 2013 Statement of the Case. At his hearing, however, the Veteran waived initial Agency of Original Jurisdiction review of this additional evidence. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Increased Ratings The Veteran asserts that the severity of his service-connected heart disability warrants a higher rating. Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran's disability is not and cannot be adequately rated under the Rating Schedule. This appeal stems from a February 24, 2010 claim for an increased rating. Prior to his increased rating claim, the Veteran was in receipt of a 10 percent rating, which was increased to 30 percent in the September 2010 rating decision on appeal. The Veteran's heart disability is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005, for arteriosclerotic heart disease (or coronary artery disease). Under Diagnostic Code 7005, a 30 percent rating under DC 7005 is not warranted unless METs testing shows the Veteran develops dyspnea, fatigue, angina, dizziness, or syncope at a workload greater than 5 METs but not greater than 7 METs, or; alternatively, evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is not warranted unless there is 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 (LVEF) of 30 to 50 percent. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). One metabolic equivalent (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. 38 C.F.R. § 4.104, Note (2). 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. Id. As an initial matter, the Board finds that an increased disability rating of 60 percent for the Veteran's heart disability is warranted effective February 27, 2020. In that regard, the Veteran provided a VA Disability Benefits Questionnaire (DBQ) during his Board hearing that was completed by his private Cardiologist, Dr. K.G., which notes an estimated workload of greater than 3 METs but not greater than 5 METs that resulted in dyspnea (shortness of breath). Review of medical records provided by Dr. K.G.'s office note that the Veteran initially sought treatment on February 27, 2020, where he reported an increase in dyspnea with any minimal exertion. While the DBQ provided by Dr. K.G. and its estimated METs was dated in January 2021, the Board affords the Veteran the benefit of the doubt that the disability warranted a higher rating in February 2020, when he first reported an increase in dyspnea. A rating higher than 60 percent from February 27, 2020 is not warranted, however, as the record is absent any indication that productive of chronic congestive heart failure, a workload of 3 METs or less, or LVEF less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. LVEF was actually noted to be 65 percent in a March 2020 echocardiogram, and between 55 to 60 percent again in a more recent echocardiogram in January 2021. The probative medical record is also against a finding that a rating in excess of 30 percent is warranted for the period prior to February 27, 2020. In that regard, the Veteran was afforded a VA heart conditions examination for his initial increased rating claim in May 2010, where his diagnosis of mitral valve prolapse and slight regurgitation with intermittent chest pain was confirmed. The Veteran reported increased shortness of breath, particularly after walking. The examiner noted that the Veteran had recently undergone a quadruple bypass in July 2008, with a follow-up echocardiogram in April 2009 revealing a LVEF between 55 and 65 percent and an essentially normal stress test in April 2010. The examiner estimated that the Veteran's METs level was "approximately 6." The Veteran's rather extensive medical treatment records during this period are not in significant conflict with the findings upon VA examination. While the Veteran has a longstanding history of dyspnea during this period, the record is does not reflect more than one episode of acute congestive heart failure during any given year; a workload of 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. As such, the Board finds that the Veteran's disability picture prior to February 27, 2020 more nearly approximates the criteria for the 30 percent disability rating currently assigned for that period. In sum, the evidence is in favor of an increased 60 percent disability rating, but no higher, for the Veteran's heart disability from February 27, 2020. To that extent the appeal is granted. A rating in excess of 30 percent prior to February 27, 2020 is denied. The Board is sympathetic to the Veteran's lay statements to the extent that he asserts his disability is worse than currently evaluated, and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. REASONS FOR REMAND While the Board regrets further delay, the Veteran's remaining claims must be remanded for additional development. 1. Service connection for hypertension. The Veteran asserts that he has hypertension that is secondary to his service-connected heart disability. A disability shall be service connected if it is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. The only medical opinion of record as to the etiology of the Veteran's hypertension is that of a VA examiner in September 2010, which was obtained for the purposes of the initial service connection claim and was the basis for the rating decision on appeal. The examiner opine that it is less likely than not that the Veteran's hypertension is related to his heart disability, explaining only that the Veteran "has good ejection fraction with very slight regurgitation and his hypertension is most likely essential." Not only is the opinion that his hypertension is "most likely" essential speculative in nature, it is without further rationale as to why this results in the negative determination that his heart disability plays no part in his hypertension. It is also lacking any opinion as to aggravation, i.e., whether the Veteran's hypertension may have been aggravated beyond its natural progression by his heart disability. As the Board finds the September 2010 opinion to be incomplete, an additional VA examination is necessary to determine the nature and etiology of the Veteran's hypertension. The Board notes for the record that the Veteran is also service-connected for several other disabilities, including an acquired psychiatric disorder and bronchial asthma with sleep apnea, and the record currently indicates a diagnosis of pulmonary hypertension in addition to essential hypertension. In providing a medical opinion as to the etiology of any hypertension diagnosis, the examiner should consider any and all of the Veteran's service-connected disabilities. 2. A rating in excess of 10 percent for a low back disability. In the September 2010 rating decision on appeal, the RO increased the noncompensable (zero percent) rating for the Veteran's service-connected low back disability to 10 percent, effective the date of his increased rating claim on February 24, 2010. The Veteran maintains that the severity of his disability warrants a higher rating, including during his Board hearing where he reported and inability to stand for longer than 20 minutes and the need for daily pain medication. Although the Veteran submitted a VA Back DBQ completed by a private physician during his Board hearing, it is absent the range of motion findings necessary for the Board to properly adjudicate the claim under the rating criteria for disabilities of the spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. As his last VA examination of the spine was in December 2013, an updated examination is necessary. The Board notes that the Veteran has also reported during the appeal that his low back disability and its neurological effects have resulted in erectile dysfunction, and submitted a VA DBQ suggesting such during his Board hearing. However, while a VA peripheral nerve examination was afforded recently in March 2021, it makes no reference to erectile disfunction. Any additional examination that is necessary to determine the nature and etiology of any erectile dysfunction should also be provided. 3. A rating in excess of 30 percent for bronchial asthma with sleep apnea. The Veteran is current service connection with bronchial asthma with sleep apnea, evaluated together as 30 percent disabling. By way of background, the Veteran was originally granted service connection for bronchial asthma in January 1986. In May 1995 he was granted his current 30 percent rating. The Veteran filed a claim for an increased rating in June 2010, resulting in the current rating decision on appeal issued in December 2010. Based on the findings of a VA examination in September 2010, the RO determined that the Veteran now had sleep apnea, which was aggravated by his service-connected bronchial asthma. Rather than award a separate rating for sleep apnea, however, it was combined with his already-service-connected bronchial asthma. The Board notes that rating coexisting respiratory conditions is governed by 38 C.F.R. § 4.96(a). When there are two co-existing respiratory conditions, as is the case here, a single rating will be assigned under the diagnostic code that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.96(a). In other words, VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability's diagnostic code. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). In the Veteran's case, a noncompensable (zero percent) evaluation was assigned for the newly-service-connected sleep apnea and was included in the evaluation for bronchial asthma, which was shown to be the predominate disability. Essentially, the Veteran's disability rating remained the same at 30 percent. At his hearing, the Veteran asserted that the severity of his bronchial asthma with sleep apnea (particularly the latter) warrants a higher rating. As his last VA respiratory examination was in 2010, a new examination is necessary. While the examiner in 2010 stated that it would be speculative to determine any baseline level of severity of the Veteran's sleep apnea, the record now contains extensive medical records as to the nature of his sleep apnea in the years since, including a February 2021 sleep study indicating mild sleep apnea. The matters are therefore REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his remanded claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current hypertension disability onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current hypertension disability is at least as likely as not (a) caused, or (b) aggravated (i.e., worsened beyond natural progression) by service-connected disability or disabilities. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions is requested as adjudicators are precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for all necessary VA ¬¬¬examinations to determine the current symptoms, level of severity, and functional impairment associated with his service-connected low back disability, to include its neurological effects. The claims file should be reviewed by the examiner. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If it is not possible to specifically estimate range of motion of the spine during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether, during these conditions, forward flexion of the lumbar spine would be limited to 60 degrees or less (and to what extent), or if the combined range of motion of the lumbar spine would be 120 degrees or less. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. If motion would be greater than this, that should be stated. If this cannot be accomplished without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. 4. After records development is completed, schedule the Veteran for relevant VA examinations to determine the current symptoms, level of severity, and functional impairment associated with his service-connected bronchial asthma with sleep apnea. The claims file should be reviewed by the examiner(s). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.