Citation Nr: 22014540 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-40 719 DATE: March 14, 2022 ORDER Entitlement to an increased initial evaluation for service-connected coronary artery disease (to include acute, subacute, or old myocardial infarction, atherosclerotic cardiovascular disease, valvular heart disease, and congestive heart failure) (hereinafter, service-connected heart disabilities), currently evaluated 10 percent disabling from March 6, 2012, to November 13, 2018, and 30 percent from November 14, 2018, to June 28, 2021, is denied. REMANDED Entitlement to service connection for degenerative arthritis of the spine is remanded. FINDINGS OF FACT 1. From March 6, 2012, to November 13, 2018, the Veteran's coronary artery disease exhibits a workload of 7 METs but not greater than 10 METs and results in continuous medication required. 2. From November 14, 2018, to June 28, 2021, the Veteran's coronary artery disease exhibits a workload of greater than 7 METs but not greater than 10 METs and there is evidence of cardiac hypertrophy. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 10 percent from March 6, 2012, to November 13, 2018, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.104, Diagnostic Code 7005. 2. The criteria for entitlement to an initial evaluation in excess of 30 percent from November 14, 2018, to June 28, 2021, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to December 1968, to include in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In June 2019, testified at a hearing before a Veteran's Law Judge. The hearing transcript has been associated with the record. These matters, among others, were previously before the Board in October 2019, November 2020, and April 2021, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. Throughout the pendency of the Veteran's appeal, the AOJ granted appeals to establish service connection for several disabilities, to include tinnitus and bilateral hearing loss, in full. As such, these appeals have been abrogated and are no longer in appellate status. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Further, in several rating decisions and Decision Review Officer (DRO) decisions, the AOJ adjusted the effective date for the grant of service connection for his service-connected heart disabilities and partially granted the appeal seeking an increased evaluation for this disability. Most recently, the 30 percent initial evaluation for this disability was increased to 100 percent, effective from June 29, 2021. These actions have impacted the appeal period for consideration, and the issue has been recharacterized as stated on the title page to such. In January 2022, the Veteran testified the Veteran was informed that the judge who conducted the hearing is no longer employed by the Board and of his right to request another optional Board hearing. The Veteran responded in the negative, and thus, the Board may proceed without completing another hearing. Entitlement to an increased initial evaluation for service-connected heart disabilities, currently evaluated 10 percent disabling from March 6, 2012, to November 13, 2018, and 30 percent from November 14, 2018, to June 28, 2021, Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation is assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected heart disability has been rated under Diagnostic Codes 7005. For rating diseases of the heart, 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. Diagnostic Code 7005 provides ratings for arteriosclerotic heart disease (coronary artery disease) and requires documented coronary artery disease. Arteriosclerotic heart disease (coronary artery disease) resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in 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, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; 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, is rated 100 percent disabling. Analysis The Veteran's coronary artery disease is currently rated at 10 percent disabling from March 6, 2012, to November 13, 2018; 30 percent disabling from November 14, 2018, to June 28, 2021; and 100 percent disabling from June 29, 2021. The Veteran contends that his heart disability warrants higher evaluations throughout the course of the appeal. From March 6, 2012, to November 13, 2018 The Veteran attended a VA examination in August 2014. The examiner noted a history of myocardial infarction, angioplasty, and stent placement for occlusive disease in 1999. The Veteran developed atrial fibrillation in 2005 that is controlled with medication. An angiogram in 2008 showed no blockages. A stress test in 2010 showed METS of 10.5 with no stress related abnormalities. EKG in May 2010 and in February 2014 showed no evidence of atrial fibrillation/normal sinus rhythm. An August 2014 echocardiogram indicated left ventricular ejection fracture (LVEF) of 60 percent. Resting baseline EKG was normal. Stress EKG demonstrated normal sinus rhythm. Stress arrhythmias did not occur. Moderate sized mild to moderate severity inferior fixed defect suggestive of infarction was noted. METs testing indicated a METs level of 13.5. The Veteran denied symptoms with any level of physical activity. The examiner noted that the exercise stress test most accurately reflected the Veteran's cardiac functional level. The Veteran did not have congestive heart failure, arrythmia, or a heart valve condition. Upon examination, the Veteran exhibited left ventricular dysfunction with an ejection fraction of more than 50 percent; workload of greater than ten METs. He denied experiencing symptoms of dyspnea, fatigue, angina, dizziness or syncope with any level of physical activity. The examiner noted that continuous medication was required for control of the Veteran's heart disorder. The Veteran attended a VA examination in September 2018. The examiner noted acute, subacute, or old myocardial infarction, atherosclerotic cardiovascular disease, and cardiomyopathy, diagnosed in November 1999; coronary artery disease, unstable angina, and supraventricular arrythmia diagnosed in March 2005. Intermittent atrial fibrillation and supraventricular tachycardia were noted with no episodes in the prior 12 months. The Veteran did not have congestive heart failure or a heart valve condition. The examiner noted treatment for unstable angina, chest pain, and supraventricular tachycardia in March 2005, May 2008, and May 2010. Angiograph in June 2010 showed no evidence of cardiac dilatation. A February 2015 EKG noted sinus tachycardia. A February 2015 echocardiogram was normal. The examiner did not note the METs level. The examiner noted that continuous medication was required for control of the Veteran's heart disorder. A 10 percent evaluation was assigned for the Veteran's coronary artery disease based on continuous medication is required. Additional symptoms included left ventricular dysfunction with an ejection fraction of more than 50 percent; workload greater than ten METs; the Veteran denied experiencing symptoms of dyspnea, fatigue, angina, dizziness or syncope with any level of physical activity. After reviewing the evidence, the Board finds that the evidence supports a 10 percent disability rating from March 6, 2012, to November 13, 2018, based on continuous medication required. The Board considered a rating of 30 percent. However, the most probative evidence dated prior to November 14, 2018, reflects that the Veteran's service-connected heart disability was not manifested by a 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. The Board considered a 60 percent rating but found it unwarranted in the absence of 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 which results in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent to 50 percent. The Board considered a 100 percent rating, but the record does not show that the Veteran has chronic congestive heart failure, a workload of 3 METs or less, or left ventricular ejection fraction of less than 30 percent. From November 14, 2018, to June 28, 2021 A transthoracic echocardiogram performed on November 14, 2018, revealed cardiac hypertrophy and a 3.5 cm ascending aorta. The Veteran attended a VA examination in December 2019. The examiner noted prior diagnoses and atrial fibrillation, intermittent, with 1-4 episodes in the prior 12 months. The Veteran reported that the most recent episode was within the last month. The most recent EKG in October 2016 was normal. METs testing on December 19, 2019, indicated dyspnea at a METs level of >7-10. In November 2020, the Board remanded for the AOJ to obtain a retrospective medical opinion regarding the Veteran's symptoms as they existed in 2018 and 2019. The examiner was also directed to address the Veteran's private records and indicate whether aortic dilatation is medically the same as cardiac dilatation as used within the diagnostic code. The Veteran attended a VA examination in January 2021 and a medical opinion was submitted in February 2021. The examiner stated that the Veteran has an extensive cardiac history of CAD, myocardial infarction with stents placement, a history of hypertension, unstable angina, paroxysmal atrial fibrillation, and cardiomyopathy. In addition, the examiner diagnosed sick sinus syndrome. The Veteran reported that he is currently asymptomatic, and his condition has improved. At METs testing on January 19, 2021, the Veteran denied dyspnea, fatigue, angina, dizziness, or syncope. The examiner stated that the Veteran atrial fibrillation is controlled with medication and is unrelated to his CAD. In April 2021, the Board found the January 2021 opinion to be inadequate and remanded for the AOJ to obtain a retrospective medical opinion regarding the Veteran's symptoms pursuant to Stegall v. West, 11 Vet. App. 268 (1998). In June 2021, the Veteran was afforded a VA examination. The examiner diagnosed chronic congestive heart failure as of May 28, 2021, the date of a recent echocardiogram. As to whether any symptoms caused by the Veteran's service-connected coronary artery disease are or were distinguishable from any symptoms caused by any other heart disability or condition, the examiner opined that the Veteran has been diagnosed with diastolic dysfunction, grade 1, not associated directly with coronary artery disease. As to whether any symptoms caused by the Veteran's service-connected atrial fibrillation are distinguishable from signs and symptoms of coronary artery disease (from 2014 onward), the examiner opined that both appear asymptomatic. The Veteran's claimed palpitations are not objectively noted associated with atrial fibrillation. As to which diagnosed cardiac diagnoses, including hypertension, coronary artery disease, heart palpitations, ascending aortic dilation, sick sinus syndrome, unstable angina, cardiomyopathy, and paroxysmal atrial fibrillation, contribute to the METs level limitation reported in the December 2019 VA examination, the examiner stated that he was unable to answer without supposition. As to whether the Veteran's dilated ascending aorta qualifies as cardiac dilatation, the examiner opined that it does not. The aorta is a separate vascular structure. In August 2021, the examiner submitted another addendum opinion. The examiner reviewed the Veteran's complete VA file. As to whether, during the appellate period (from 2014 onward), the Veteran has or had signs and symptoms of any of the disabilities or diagnoses listed in the private records, or if any of the Veteran's disabilities or diagnoses are or were asymptomatic, the examiner found that since 2014 the cardiologist reports provide that the Veteran's hypertension, ascending aortic dilation, sick sinus syndrome, cardiomyopathy, and paroxysmal atrial fibrillation were asymptomatic. Heart palpitations, a subjectively perceived abnormality of the heartbeat characterized by hard, fast, or irregular beats are for considered a symptom and not an independent condition. Unstable angina and atrial fibrillation with symptomatic palpitations, were resolved following cardiac catheterization on April 26, 2005. Transthoracic Echocardiogram performed at Bronson Battle Creek, MI on November 14, 2018, reveals 3.5 cm ascending aorta. In adults, an ascending aortic diameter greater than 4 cm is considered to indicate dilatation. Aneurysmal dilatation is considered when the ascending aortic diameter reaches or exceeds 1.5 times the expected normal diameter (equal to or greater than 5 cm). Common causes of aortic root dilation include chronic hypertension, aortitis, chest injury, aortic dissection and Marfan syndrome. Cardiac event monitor report on April 23, 2015, revealed Baseline NSR, borderline high average daytime heart rate, daytime PAC and atrial bigeminy with max heart rate 133 bpm at 20.34, asymptomatic no reported symptoms. Atrial fibrillation is distinguishable from coronary artery disease symptoms. Common symptoms include shortness of breath, weakness, fatigue, lightheadedness and dizziness. Coronary artery disease contributes to the METs level limitation reported in the December 2019 VA examination. Based on the evidence set forth above, the Board finds that a 30 percent evaluation was appropriately assigned from November 14, 2018, based on cardiac hypertrophy, continuous medication is required; left ventricular dysfunction with an ejection fraction of more than 50 percent; and workload of greater than seven METs but not greater than ten METs results in dyspnea, fatigue, angina, dizziness, or syncope. Cardiac hypertrophy was initially documented in the November 14, 2018, echocardiogram, indicating entitlement to a 30 percent rating as of that date. The Board considered a 60 percent rating but found it unwarranted in the absence of 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 which results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent to 50 percent. The Board has considered a 100 percent rating, but the record does not show that the Veteran has chronic congestive heart failure, a workload of 3 METs or less, or left ventricular ejection fraction of less than 30 percent. A 100 percent evaluation was assigned effective June 29, 2021, for coronary artery disease based on chronic congestive heart failure, which was diagnosed at the June 29, 2021, examination. Additional symptoms include continuous medication is required; evidence of cardiac dilation on echocardiogram; left ventricular dysfunction with an ejection fraction of 30 to 50 percent; and workload of greater than 7 but not greater than ten METs that results in dyspnea, fatigue, angina, dizziness, or syncope. In sum, the Board finds that the evidence, including recent addendum opinions, the Veteran's VA examinations and medical opinions, private records, testimony and lay statements, demonstrate that the Veteran's disability from March 6, 2012, to November 13, 2018, supports a 10 percent disability evaluation. Transthoracic echocardiogram performed on November 14, 2018, revealed cardiac hypertrophy and the Veteran was appropriately granted a 30 percent evaluation as of that date. The Board finds that the evidence persuasively weighs against a finding of entitlement to a higher initial evaluation, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to a rating in excess of 10 percent for coronary artery disease from March 6, 2012, to November 13, 2018, and in excess of 30 percent from November 14, 2018 to June 28, 2021 must be denied. The Board considered other codes which could provide the Veteran with a higher rating. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). The VA medical examiners stated that the Veteran's primary disability has been diagnosed as coronary artery disease and Diagnostic Code 7005 pertains specifically to the disability at issue. Thus, the evidence does not support application of an alternate diagnostic code. The Veteran's hypertension and atrial fibrillation have been separately rated and therefore assigning a higher rating based on those disabilities would violate the prohibition against pyramiding benefits in 38 C.F.R. § 4.14. The Board finds that the evidence does not present exceptional or unusual circumstances so as to warrant referral for an extraschedular rating. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Lastly, the Board observes that the Veteran has maintained employment as a pastor throughout the appeal period, and thus, the Court's holding in Rice v. Shinseki, 22 Vet. App. 447, 452 (2009), is not for application. REASONS FOR REMAND Entitlement to service connection for degenerative arthritis of the spine is remanded. The Veteran has been diagnosed with several back disabilities, including stenosis, compression of the left L5 and right S1 nerve roots related to disc protrusion, nerve sheath tumors, spondylosis, and neurofibroma. The Veteran has alleged that he experienced back pain in service, and strained his back while he was deployed in the Republic of Vietnam, but was unable to seek treatment. In his August 2016 appeal, the Veteran stated that he sustained a back injury during active service and that it is a consequence of combat operations in Vietnam and therefore must be evaluated under 38 U.S.C. § 1154(b). In cases where a Veteran has asserted service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable and ease the evidentiary burden of a combat Veteran. The Veteran testified in the June 2019 hearing that he strained his back during active service in Vietnam in the course of his duties as a military policeman/dog handler. He stated that he was required to lift the 90 pound dog on and off of a deuce truck. He indicated that he kept working even when injured because if he was down, the dog was down. The Veteran provided more details of his service in Vietnam during a November 2021 VA examination. He stated that he upon entering service in 1967, he was trained as a military policeman/dog handler. He was sent to Vietnam in 1968 and assigned to guard a post that housed ammunition. His dog was trained to alert him if someone came inside the fence. He described mortar attacks and small arms fire. He reported helicopters landing nearby to medivac injured servicemembers. Personnel records indicate that the Veteran's MOS was military policeman/sentry dog handler and confirm foreign service with USARPAC in Vietnam. The Board finds that the combat presumption applies to this Veteran. In addition, the Board concedes herbicide agent exposure based on the circumstances of the Veteran's service in the Republic of Vietnam. The Veteran was afforded a VA examination in January 2021. In providing a negative nexus opinion, the examiner found that the diagnosis of a back disability was less likely than not incurred in or caused by riding in a bumpy truck or jumping off a truck with heavy gear during service. There is a lack of chronicity of care for a back disability from time of onset in service to current time. The Board remanded in April 2021 for a supplemental opinion, finding the examiner's rationale was inadequate. First, it is based on a lack of documented treatment or care and does not explain relevant medical principles. The Board noted in prior remands that a rationale must not be based solely on lack of documentation. Second, the rationale does not account for the Veteran's competent reports of back pain or strain during service. The Veteran testified that he strained his back in Vietnam but had to ignore it because he was unable to seek treatment. Third, the examiner did not address the Veteran's testimony that he never hurt his back as a civilian. Fourth, as indicated in the November 2020 remand, the examiner did not specifically address all diagnoses in the Veteran's medical records. The Veteran was afforded a VA examination in June 2021. He was diagnosed with degenerative arthritis; degenerative disc disease other than intervertebral disc syndrome (IVDS); intrathecal L2 L4 lesion; and left lower extremity radiculopathy. The Veteran reported a history of onset of back pain during military service. He served as a military policeman/dog handler. He reported straining from lifting the service dogs, which weighed 100 lbs. He believes he was evaluated during his deployment to Vietnam in 1968. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was as follows: Available service treatment records do not document a back condition, including the separation examination. Referencing a November 2011 MRI, the examiner opines that degenerative disc disease is a progressive condition associated with aging, genetic predisposition, and axial load bearing is a condition of the intervertebral discs that can lead to disc displacement, bulging, and herniation. The examiner found that intrathecal spinal lesions are relatively uncommon and may contribute to pain in the associated areas. The examiner opined that the Veteran's back pain is attributable to lumbar spinal disc bulge and spinal lesions, diagnosed over 40 years after discharge. The conditions were neither diagnosed nor were associated symptoms reported during service. The examiner found a nexus is not established. The Board finds that the June 2021 is inadequate as the examiner continued to rely on the absence of documentation in service treatment records and the passage of time before diagnosis and did not adequately address the Veteran's testimony or lay statements. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, the opinion did not comply with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The examiner also did not adequately address the circumstances of the Veteran's service in relation to his diagnoses, testimony and statements. A remand is required for a medical opinion addressing all of the evidence of record in the context of herbicide agent exposure and the combat presumption. The matters are REMANDED for the following action: 1. The AOJ should remand this issue for an addendum opinion to a different examiner than the examiner who provided the earlier opinions. The examiner should then provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any of the Veteran's back disabilities were incurred in, caused by, or related to, active duty service. The examiner must specifically address all diagnoses documented in the Veteran's records, including stenosis, compression of the left L5 and right S1 nerve roots related to disc protrusion, nerve sheath tumors, spondylosis, and neurofibroma and discuss whether any is etiologically related to service, including conceded exposure to herbicide agents and combat service. The examiner must discuss the Veteran's testimony and statements that he strained his back during service, including lifting a sentry dog in and out of vehicles but he was not able to seek treatment, within the context of the Board's finding that the combat presumption in 38 U.S.C. § 1154 (b) applies to this Veteran. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.