Citation Nr: 22014530
Decision Date: 03/14/22	Archive Date: 03/14/22

DOCKET NO. 16-33 008
DATE:    March 14, 2022

ORDER

Entitlement to service connection for a headache disorder to include as secondary to a service-connected coronary artery disease is granted.

Entitlement to service connection for a vertigo and dizziness disorder to include as secondary to a service-connected coronary artery disease is granted.

Entitlement to a disability rating in excess of 30 percent prior to November 30, 2016 for coronary artery disease (CAD) is denied.

Entitlement to a disability rating of 60 percent, but no higher, from November 30, 2016, to September 28, 2021, for CAD is granted.

Entitlement to a disability rating in excess of 60 percent from September 29, 2021, for CAD is denied.

FINDINGS OF FACT

1. The Veteran's headache disorder was at least as likely as not aggravated beyond its natural progression by medication associated with his coronary artery disease.

2. The Veteran's vertigo and dizziness disorder was at least as likely as not aggravated beyond its natural progression by medication associated with his coronary artery disease.

3. Prior to November 30, 2016, the Veteran's coronary artery disease manifested as a workload of 5.1-7.0 METs resulting in heart failure symptoms; or evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multi gated acquisition scan or magnetic resonance imaging).

4. After November 30, 2016, the Veteran's coronary artery disease manifested as workload of 3.1-5.0 METs resulting in heart failure symptoms.

CONCLUSIONS OF LAW

1. The criteria of service connection for a headache disorder as secondary to CAD are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria of service connection for a vertigo and dizziness disorder as secondary to CAD are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for a disability rating in excess of 30 percent for coronary artery disease, prior to November 30, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005.

4. The criteria for a disability rating of 60 percent, but no higher, for coronary artery disease, from November 30, 2016, to September 28, 2021, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005.

5. The criteria for a disability rating in excess of 60 percent for coronary artery disease from September 29, 2021, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1965 to September 1967.

This appeal is before the Board of Veterans' Appeals (Board) from multiple rating decisions from Department of Veterans Affairs (VA) Regional Offices (RO). The Veteran's claims were previously remanded by the Board in August 2018 and 2021.

While the appeal was pending, a RO granted service connection for a gastrointestinal disorder and erectile dysfunction. See November 2021 Rating Decision. As this action constitutes a full grant of the benefits sought on appeal, the claims of entitlement to service connection for a gastrointestinal disorder and erectile dysfunction are no longer in appellate status.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The November 2021 Rating Decision also increased the Veteran's evaluation for coronary artery disease to 60 percent, effective September 29, 2021. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought.  Such a claim remains in controversy where less than the maximum benefit available is awarded).

For the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998).

Service Connection

The Veteran seeks entitlement to service connection for headache and vertigo and dizziness disorders which he alleges are the result of active service and in the alternative are the result of medication he took to treat his service-connected CAD.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

1. Headache Disorder 

2. Vertigo and Dizziness Disorder

Turning to the evidence of record, the service treatment records (STRs) indicate that during his May and November 1965 pre-induction and inductions examinations he reported experiencing frequent, strong headaches. The STRs do not contain any treatment for, or complaints related to headaches, vertigo, or dizziness and he denied experiencing both during his September 1967 separation examination. 

In his March 1970 initial claim of entitlement he reported that he received treatment for headaches in-service in 1967.

In February 2013, private treatment records indicate he received treatment for dizziness. 

In October 2013, VA records indicate he stopped taking the medication Imdur for his coronary artery disease because "it was causing him dizziness." In November 2013, VA records indicate his current headaches are possibly related to medication taken for his service-connected coronary artery disease. In November 2017, VA records indicate he received treatment for a persistent headache.

In August 2018, the Board remanded his claims to afford the Veteran his requested Direct Review Officer (DRO) hearing. In August 2018, the Board reopened his claims and remanded his claims for medical opinions as to their nature and etiologies to include if the disabilities were aggravated by or proximately due to medication used to treat his service-connected coronary artery disease.

In September 2021 the Veteran underwent VA headaches and ear conditions examination reports which included reviews of the claims file, recitations of complaints and medical history, and examination results. The report determined he had diagnosed headache and peripheral vestibular disorders which the examiner characterized as "giddiness." Ultimately, the examiner determined it was less likely than not his disorders were the result of active service or proximately due to or the result of his service-connected disabilities. However, as to aggravation, the examiner opined:

No baseline can be provided for aggravation of headaches and giddiness. Both, the Veteran and spouse noticed that after beginning the medications the headaches and giddiness became more frequent and severe with partial diminution of these symptoms after discontinuation of the offending medication (Imdur). The headaches and giddiness persisted, but to a lesser degree. Meaning that it worsened the headaches and giddiness beyond its natural progression.

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the weight of the evidence indicates his headache and vertigo and dizziness disorders were aggravated beyond their natural progression by his service-connected coronary artery disease medication. 

Secondary service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310.

Here, the September 2021 VA examiner specifically noted the medication the Veteran took to treat his coronary artery disease "worsened the headaches and giddiness beyond its natural progression." This opinion indicates the VA examiner determined his claimed disabilities were aggravated by the medication taken in association with coronary artery disease treatment. Moreover, the evidence of record is devoid of any competent or credible medical opinion to counter the findings of the September 2021 VA examiner. Accordingly, service connection on a secondary basis is warranted for his headache and vertigo and dizziness disorders as both were aggravated beyond their natural progressions due to medication taken to treat a service-connected disability. 38 C.F.R. § 3.310.

INCREASED 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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.

A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim 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). 

During the pendency of the Veteran's claim, the rating criteria found at 38 C.F.R. § 4.104, Diagnostic Code 7005 changed as of November 14, 2021. 

Prior to November 14, 2021, VA regulation, 38 C.F.R. § 4.104, Diagnostic Code 7005, provided the following rating schedule regarding coronary artery disease (CAD), also classified as arteriosclerotic coronary heart disease:

A 100 percent rating was warranted for chronic congestive heart failure; or workload of 3 metabolic equivalents (METs) or less results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent.

A 60 percent rating was 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 30 percent rating was warranted for workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.

Note (1): Evaluate cor pulmonale, which is a form of secondary heart disease, as part of the pulmonary condition that causes it. Note (2): One MET (metabolic equivalent) 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. Note (3): For this general formula, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope.

The phrases "left ventricular dysfunction with an ejection fraction of 30 to 50 percent" (as found in the 60-percent rating) and "left ventricular dysfunction with an ejection fraction of less than 30 percent" (as found in the 100-percent rating) have been specifically defined in Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). The Otero-Castro court held that a veteran is entitled to a 60-percent rating by showing "left-ventricular dysfunction" or "left-ventricular ejection fraction of 30% through 50%." Id. at 308, 382. The Court concluded that a left-ventricular ejection fraction of 30% through 50% is itself evidence of dysfunction. Id. at 381-82. The same analysis applies to the 100-percent rating by analogy.

Notably, 38 C.F.R. § 4.104, Diagnostic Code 7005 uses the word "or," which is disjunctive, within the disability criteria, i.e., 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. Id. The use of the word "or" provides for an independent basis rather than an additional requirement for a disability rating. A veteran need only prove the existence of any one of the listed criteria to satisfy the requirement for a disability evaluation.

After November 14, 2021, 38 C.F.R. § 4.104, Diagnostic Code 7005 was amended, and it now provides as follows:

A 100 percent rating is warranted for workload of 3.0 METs or less results in heart failure symptoms. A 60 percent rating is warranted for Workload of 3.1-5.0 METs results in heart failure symptoms. A 30 percent rating was warranted for workload of 5.1-7.0 METs results in heart failure symptoms; or evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multi gated acquisition scan or magnetic resonance imaging).

Note (1): Evaluate cor pulmonale, which is a form of secondary heart disease, as part of the pulmonary condition that causes it. Note (2): 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 breathlessness, 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, a medical examiner may estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in those symptoms. Note (3): For this general formula, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope.

A noticeable difference following the amendments is that the left ventricular dysfunction with an ejection fraction is no longer part of any of the rating criteria; instead, only METs are included.

Because the Veteran's appeal has been pending prior to these amendments, the Board is required to analyze his claim under both versions of 38 C.F.R. § 4.104, Diagnostic Code 7005, as of November 14, 2021, and whichever criteria is more favorable to the Veteran will be applied. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).

3. Coronary Artery Disease Prior to November 30, 2016 

4. Coronary Artery Disease After November 30, 2016

Turning to the evidence of record, in October 2013, he underwent a VA ischemic heart conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The report determined he was negative for myocardial infarction, congestive heart failure, cardiac arrhythmia, infectious heart conditions, pericardial adhesions, or any other pertinent physical findings. Results from a September 2013 exercise test revealed he could perform 10.3 METs. However, the report also included an interview based METs test which revealed the following results: he reported angina and fatigue for less than 7-10 METs. The report determined his ejection fraction was 55-60 percent.

In May 2015, he underwent a VA ischemic heart conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The report determined he was negative for myocardial infarction, congestive heart failure, cardiac arrhythmia, infectious heart conditions, pericardial adhesions, or any other pertinent physical findings. The report also included an interview based METs test which revealed the following results: he reported angina and fatigue for less than 7-10 METs. The report determined his ejection fraction was 55-60 percent.

In June 2016, he underwent a VA ischemic heart conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The report determined he was negative for myocardial infarction, congestive heart failure, cardiac arrhythmia, infectious heart conditions, pericardial adhesions, or any other pertinent physical findings. The report also included an interview based METs test which revealed the following results: he reported dyspnea and fatigue for less than 5-7 METs. The report determined his ejection fraction was 50-55 percent.

Also in June 2016, the Veteran submitted his own heart conditions disability benefits questionnaire; however, it did not include any evidence that bears on his claim.

A November 30, 2016 VA record indicates the Veteran had "no active cardiopulmonary symptoms with METS >4." Another note on the record indicates, 3-4 METs. A December 5, 2016 VA record reveals the following, "can walk more than two blocks and can climb up a flight of stairs with a level of physical activity at >4 METs."

In September 2021, he underwent a VA ischemic heart conditions examination report which included a review of the claims file, a recitation of complaints and medical history, and examination results. The report determined he was negative for myocardial infarction, congestive heart failure, cardiac arrhythmia, infectious heart conditions, pericardial adhesions, or any other pertinent physical findings. The report also included an interview based METs test which revealed the following results: he reported dyspnea and fatigue for less than 3-5 METs. The report determined his ejection fraction was 55-60 percent.

The Board notes the evidence of record also contains a litany of VA and private medical records documenting routine treatment for his coronary artery disease; however, the records not recited above do not have a bearing on this decision. 

After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the probative evidence weighs against finding the Veteran's coronary artery disease warrants a disability rating in excess of 30 percent prior to November 30, 2016. The evidence supports the assignment of a 60 percent disability rating, but no higher thereafter. Therefore, a 60 percent rating is granted from November 30, 2016, to September 28, 2021, and a rating in excess of 60 percent is denied from September 29, 2021.

As previously stated, the criteria for Diagnostic Code 7005 changed and the Board may apply the prior version of Diagnostic Code 7005 to prior to November 14, 2021 but may apply whichever set of criteria is more favorable to periods after November 14, 2021, as this claim was pending prior to this date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

As to his coronary artery disease prior to November 30, 2016 under the previous version of Diagnostic Code 7005, it provided a 60 percent rating 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. 38 C.F.R. § 4.104, Diagnostic Code 7005.

Here, at no point has the evidence of record indicated the Veteran's coronary artery disease manifested symptoms commensurate with the criteria for a 60 percent rating under the prior code prior to November 30, 2016. The evidence indicates his METs testing revealed either 7-10 or 5-7 METs. Indeed, nothing in the claims file prior to November 30, 2016 indicates he manifested less than 5 METs. Moreover, there is no medical evidence of an MI, congestive heart failure or an ejection fraction of less than 50 percent at any time during the appeal period. Additionally, the Veteran is not deemed competent to self-diagnose MI or congestive heart failure, express his percentage of ejection fraction, or express his workload capacity in terms of METs. Lastly, the evidence of record is devoid of any competent or credible medical evidence indicating his disability warrants a 60 percent rating under the prior code prior to November 30, 2016.

As to his coronary artery disease after November 30, 2016, the Veteran is entitled to 60 percent rating; this does not change when considering the revised version of Diagnostic Code 7005 from November 14, 2021. Specifically, as of November 30, 2016, the evidence indicates he was continually between 3 and 5 METS (Prior Code) and between 3.1 and 5 METS (Current Code). Additionally, the evidence of record is devoid of any indication his disability warrants a rating in excess of 60 percent thereafter.

Under the previous version of Diagnostic Code 7005, a 100 percent rating was assigned for documented coronary artery disease resulting in 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 less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. 

Under the current version of Diagnostic Code 7005, a 100 percent rating is warranted for 3 METs or less results in heart failure symptoms.

Here, at no point beginning on November 30, 2016, has the evidence of record indicated the Veteran's CAD manifested symptoms commensurate with the criteria for a 100 percent rating under the old version of Diagnostic Code 7005; nor is there evidence that a 100 percent rating may be warranted under the revised version from November 14, 2021. Specifically, the evidence does not indicate he ever experienced less than 3 METS (Current Code) or had ejection fraction less than 30 percent (Prior Code). See 2013, 2015, 2016, and 2021 VA Examinations. Additionally, the Veteran is not deemed competent to self-diagnose MI or congestive heart failure, express his percentage of ejection fraction, or express his workload capacity in terms of METs. Indeed, the evidence of record is devoid of any competent or credible medical evidence indicating his disability warrants a 100 percent rating under either version of the code after November 30, 2016.

In conclusion, the weight of the evidence is against finding the Veteran's coronary artery disease warrants a disability rating in excess of 30 percent prior to November 30, 2016. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the weight of the evidence is against the claim, the doctrine is not for application. 38 U.S.C. § 5107. The weight of the evidence supports the assignment of a 60 percent rating, but no higher, from November 30, 2016 for his coronary artery disease. To the extent that any higher rating is sought from November 30, 2016, the Board has considered the doctrine of reasonable doubt; however, as the weight of the evidence is against the claim, the doctrine is not for application. Id. 

 

Accordingly, a rating in excess of 30 percent is denied prior to November 30, 2021; a 60 percent rating, but no higher, is granted from November 30, 2016, to September 28, 2021; and a rating in excess of 60 percent is denied from September 29, 2021.

 

 

A. Odya-Weis

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Law Clerk, Tyler R. Masters

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.