Citation Nr: 22011237 Decision Date: 02/28/22 Archive Date: 02/28/22 DOCKET NO. 19-36 564 DATE: February 28, 2022 ORDER Entitlement to an initial rating in excess of 30 percent for coronary artery disease is denied. REMANDED Entitlement to service connection for unspecified anxiety disorder is remanded. FINDING OF FACT The Veteran's coronary artery disease has resulted in fatigue at a workload greater than 5 but not greater than 7 metabolic equivalents (METs) and a left ventricular ejection fraction of 60 to 65 percent. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7005 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from October 1966 to October 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to an initial rating in excess of 30 percent for coronary artery disease The Veteran was granted service connection for coronary artery disease, effective June 13, 2015, with a disability rating of 30 percent. The Veteran contends that he is entitled to a higher initial disability rating. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 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 the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's coronary artery disease is currently evaluated under the rating criteria of Diagnostic Code 7005. Under these criteria, a disability rating of 30 percent is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A disability rating of 60 percent is to be assigned if there has been more than one episode of acute congestive heart failure 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; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent disability rating is to be assigned in cases of chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular ejection fraction of less than 30 percent. Note 1 to Diagnostic Code 7005 states that if nonservice-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, VA must request a medical opinion as to which condition is causing the current signs and symptoms. Turning to the evidence for the period on appeal, VA treatment records dated January 16, 2015, and June 15, 2016, show a regular rate and rhythm of the heartbeat without gallop or murmur. A VA examination in September 2016 noted that the Veteran had coronary artery disease and an atrial fibrillation had been diagnosed in 2004. The Veteran stated that he used atenolol for his heart condition. The Veteran said that he had chest pain in the past, but he had not had chest pain in a long while. The Veteran had no myocardial infarctions or congestive heart failure, but he had more than four episodes of arrhythmia in the previous twelve months which were documented by electrocardiogram. On examination, the Veteran's heart rate was 64 and regular with normal heart sounds and his blood pressure was 112/76. The examiner found no other pertinent physical findings. An echocardiogram completed in September 2016 showed a left ventricular ejection fraction of 60-65 percent with normal wall motion and wall thickness. An interview with the Veteran concluded that he becomes fatigued at 5-7 METs. Applying the rating criteria, the evidence does not support a rating in excess of 30 percent. The evidence indicates that the Veteran's coronary artery disease results in fatigue at 5-7 METs and a left ventricular ejection fraction of 60-65 percent. The Veteran does not have congestive heart failure or a left ventricular ejection fraction of 50 percent or less which would warrant a higher rating under the criteria of Diagnostic Code 7005. 38 C.F.R. § 4.104. The September 2016 examination indicated that the Veteran had 4 or more ventricular arrhythmias in the 12 months previously. Ventricular arrhythmias may warrant a separate rating if they are sustained. See 38 C.F.R. § 4.104, Diagnostic Code 7011. However, the symptoms which would warrant a rating under Diagnostic Code 7011 (fatigue at 5 to 7 METs) is compensated under the Veteran's rating under DC 7005. The evaluation of the same manifestation under various diagnoses is prohibited. 38 C.F.R. § 4.14. Therefore, a separate rating for ventricular arrhythmias is not warranted. The Board has also considered whether a higher rating is warranted under any other potentially applicable diagnostic code related to diseases of the heart. However, the Veteran does not have valvular heart disease, endocarditis, pericarditis, pericardial adhesions, syphilitic heart disease, myocardial infarction, hypertensive heart disease, hyperthyroid heart disease, supraventricular arrhythmias, atrioventricular block, heart valve replacement, coronary bypass surgery, cardiac transplantation, or cardiomyopathy. Consideration of Diagnostic Codes 7000 through 7004, 7006 through 7010, and 7015 through 7020 is therefore not warranted. 38 C.F.R. § 4.104. The Board has also considered whether staged ratings are appropriate in this case. However, the above evidence reflects that the Veteran's symptomatology has been stable throughout the appeal period and was consistent with no more than a 30 percent rating since service connection was granted, effective June 13, 2015. Therefore, a staged rating is not warranted in this case. In the brief filed in October 2021, the Veteran contended that he is entitled to a new examination because the earlier examination took place in 2016. However, there is no evidence indicating that the condition has worsened since the earlier examination. In increased rating claims, the "mere passage of time" since a VA examination is not, without more evidence, sufficient to compel a new, contemporaneous examination. If, however, the record documents complaints of worsening or increased symptoms after the most recent examination, this may be sufficient to trigger VA's duty to assist. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007)). As there is no evidence of worsening or increased symptoms, VA is not required to provide a new examination. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial rating in excess of 30 percent is warranted. Rather, the evidence persuasively weighs against it. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND Entitlement to service connection for unspecified anxiety disorder is remanded. A VA examination and medical opinion were prepared in September 2016. The examiner diagnosed an unspecified anxiety disorder resulting in "Occupational and social impairment with reduced reliability and productivity." The examiner concluded that the anxiety disorder was less likely than not incurred in or caused by service because "The veteran's STRs do not support a nexus to his military service [and] ETS physical dated Oct, 1968 is negative for any mental disorder." The medical opinion failed to address the Veteran's statement that his anxiety began after Vietnam or his reports of combat stressor events during service (see C&P Exam, September 7, 2016). The Veteran's October 2021 brief contended that the medical opinion was inadequate under Dalton v. Nicholson. 21 Vet. App. 23 (2007). A VA examination report is inadequate if it fails to consider all of the relevant evidence, including lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). Here, the rationale did not address the in-service stressors or the Veteran's statement that he first noticed his anxiety after Vietnam. Therefore, remand is required for a new VA examination. The matter is REMANDED for the following action: 1. Obtain the Veteran's treatment records from November 2021 to the present. 2. After obtaining any additional records, obtain an addendum opinion from the September 2016 psychiatry examiner, if available, or another appropriate examiner if the September 2016 VA examiner is not available, to determine the etiology of the Veteran's unspecified anxiety disorder. It is left to the discretion of the examiner as to whether an examination of the Veteran is needed. The examiner must opine whether the unspecified anxiety disorder is at least as likely as not related to an in-service injury, event, or disease, including firefights and seeing mutilated bodies while in Vietnam. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, Associate 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.