Citation Nr: 22015299 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 17-06 847 DATE: March 17, 2022 ORDER Prior to March 21, 2017, a rating in excess of 30 percent for service-connected atherosclerotic heart disease and coronary artery disease post myocardial infarction, claimed as ischemic heart disease (heart disability), is denied. Entitlement to service connection for hypertension, to include as due to exposure to tactical herbicides, is granted. FINDINGS OF FACT 1. Prior to March 21, 2017, the Veteran's heart disability was manifested by 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. 2. As of March 21, 2017, the Veteran has been assigned a 100 percent rating for his heart disability. 3. Resolving all doubt in his favor, the Veteran's currently diagnosed hypertension is related to his exposure to tactical herbicides. CONCLUSIONS OF LAW 1. Prior to March 21, 2017, the criteria for a rating in excess of 30 percent for a heart disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005. 2. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to July 1997. This matter is on appeal from an April 2017 rating decision in which the regional office (RO) denied service connection for high blood pressure and increased the rating for the Veteran's heart disability from 10 percent to 30 percent effective November 4, 2016, the date on which the VA received the Veteran's intent to file the present claim. Relevant to this appeal, in May 2017, the Veteran noted disagreement with the denial of service connection for high blood pressure and the rating assigned for his heart disability. In August 2017, a statement of the case was issued, and the Veteran filed a timely appeal to the Board. In March 2019 and June 2020, the Board remanded the claim for an increased rating for the heart disability and the claim for service connection for hypertension for further development. While on remand, in a June 2021 rating decision, a 100 percent rating for the Veteran's heart disability was granted, effective March 21, 2017. However, as he is presumed to seek the maximum available benefit for a disability, the claim for a higher rating prior to March 21, 2017 remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The case now returns for further appellate review, and the Board has characterized the issue for an increased rating on appeal in light of the award of such increased rating. 1. Entitlement to a rating in excess of 30 percent for a service-connected heart disability between prior to March 21, 2017 Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran claims that his current 30 percent rating from November 4, 2016 to March 20, 2017 does not reflect the severity of his symptoms during that period. Service connection for a heart disability was initially granted in a September 2014 rating decision, notice of which was sent to the Veteran later that month. Nothing further was received regarding the Veteran's heart disability until the claim presently before the Board was filed on February 7, 2017. A notice of intent to file was received on November 4, 2016. Thus, in the absence of evidence of compensable worsening occurring within the year prior to the filing of the claim, the claims period on appeal for the heart disability began on November 4, 2016. 38 C.F.R. § 3.400(o). Throughout the appeal period, the Veteran's heart disability is rated as 30 percent disabling under Diagnostic Code 7005, which sets forth the criteria for evaluating arteriosclerotic heart disease. 38 C.F.R. § 4.104. In pertinent part, Diagnostic Code 7005 provides for a 100 percent rating where there is chronic congestive heart failure (CHF), or a workload of 3 METs (metabolic equivalent) or less result in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricle ejection fraction (LVEF) of less than 30 percent. A 60 percent rating is warranted where there is more than one episode of acute CHF 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 LVEF of 30 to 50 percent. A 30 percent rating is warranted where 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. Pertinent to the evaluation of heart disabilities, 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. 38 C.F.R. § 4.104. The Veteran was afforded a VA examination of his heart disability in March 2017. The examiner noted the Veteran's diagnoses of acute, subacute or old myocardial infarction, as well as atherosclerotic cardiovascular disease. The Veteran had not experienced congestive heart failure. METs testing was not performed, indicating it had not been ordered by VA. However, per an interview-based METs test, the examiner documented that the Veteran denies experiencing symptoms attributable to a cardiac condition with any level of physical activity. The Board notes, under medical history, that the Veteran reported experiencing somewhat worse chest pain after exercising; such report was not reconciled with the reports as stated during the interview-based METs test. According to a March 2017 echocardiogram report, the Veteran had mild concentric left valve hypertrophy and an estimated LVEF of 65 percent. According to the March 2019 remand, VA treatment records had been added to the claims file after the August 2017 statement of the case. However, these records are only relevant to the period for which the Veteran is already in receipt of a 100 percent rating for his heart disability or redundant of the evidence already of record. Per the June 2020 remand, the Board directed that the Veteran be scheduled for a VA examination to ascertain the severity of his service-connected heart disability. The Veteran was afforded a VA examination in March 2021, which resulted in the grant of a total rating for the heart disability effective March 21, 2017. Relevant to the period remaining on appeal, the examiner determined, based on the March 21, 2017 interview-based METs test, that the Veteran experienced dyspnea, fatigue, and angina at the lowest level of activity. Per the March 2021 VA examiner, the Veteran's heart disorder was manifested by a workload of 3 METs or less resulting in dyspnea, fatigue, and angina. The examiner confirmed that the provided METs levels were due solely to the Veteran's heart disability. Further, the examiner noted LVEF of 60-65 percent and evidence of cardiac hypertrophy, per an echocardiogram conducted in March 2021. The Board finds that prior to March 21, 2017, a rating in excess of 30 percent for the Veteran's heart disability is not warranted. The medical evidence, to include a VA examination report dated in March 2017, does not demonstrate any findings of CHF. Additionally, such records reflect LVEF of no less than 60-65 percent. Further, the medical and lay evidence of record does not demonstrate a workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope prior to March 21, 2017. Rather, as demonstrated by the evidence discussed in detail above, the Veteran's heart disability prior to March 21, 2017 was manifested by no reported symptoms attributable to a cardiac condition with any level of physical activity. The examiner did find there was evidence of cardiac hypertrophy, per an echocardiogram conducted by a private provider in March 2017. However, the reported cardiac hypertrophy was not noted to be productive of further functional impairment. Thus, March 21, 2017, the date of the VA examination, is the earliest ascertainable date on which the Veteran's heart disability increased in severity to the 30 percent level. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Consequently, a rating in excess of 30 percent for the Veteran's heart disability prior to March 21, 2017, is denied. In making its determination in this case, the Board acknowledges the Veteran's belief that his heart symptomatology is more severe than as reflected by the currently assigned disability rating. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (holding that, although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. The Board also has considered whether a higher or separate rating for the Veteran's service-connected heart disability is warranted under any other potentially applicable Diagnostic Code, including DC 7006, which provides for ratings for myocardial infarction. In this regard, the Board notes that the March 2017 VA examination report initially shows the Veteran experienced a myocardial infarction in 2013, prior to the appeal period. The March 2021 VA examination also reflected that the Veteran experienced a myocardial infarction in 2017, subsequent to the March 2017 VA examination and during the period for which the Veteran is already in receipt of a 100 percent rating for his heart disability. After reviewing the medical and lay evidence of record, the Board finds that a higher rating is not available under DC 7006 for myocardial infarction for the claims period currently on appeal. Likewise, as the evidence does not reflect diagnoses of valvular heart disease, endocarditis, pericarditis, pericardial adhesions, syphilitic heart disease, hypertensive heart disease, atrioventricular block, heart valve replacement, coronary bypass surgery, implantable cardiac pacemaker, cardiac transplantation, or cardiomyopathy related to the Veteran's service-connected heart disability, a higher or separate rating is not warranted under Diagnostic Codes 7000-7004, 7007, 7011, or 7015-7020. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected heart disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that a rating in excess of 30 percent prior to March 21, 2017, for the Veteran's heart disability is not warranted. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. 2. Entitlement to service connection for hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). As relevant to the instant case, veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, are presumed to have been exposed to herbicide agents. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6). The law also provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, even if there is no record of evidence of such disease during the period of service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). Even if where a disorder, like hypertension, is not one of those recognized as presumptively related to herbicide exposure, service connection is still available on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Notably, the National Academy of Science (NAS) Institute of Medicine upgraded hypertension from its previous classification in the category of "limited or suggestive" evidence of an association with exposure to Agent Orange to the category of "sufficient" evidence of an association in Update 11 (2018). According to NAS, "[t]he sufficient category indicates that there is enough epidemiologic evidence to conclude that there is a positive association" between hypertension and herbicide exposure. It is uncontested that the Veteran has had hypertension during the period in which the claim was pending before VA. It has also been determined that the Veteran was exposed to tactical herbicides, like Agent Orange based on his nautical service in the offshore eligible waters of the Republic of Vietnam. See February 2020 Memorandum. Pursuant to the June 2020 remand, an addendum medical opinion was obtained in July 2020. In July 2020, opined that the Veteran's hypertension was less likely than not related to service and did not onset within a year after separation from service. In support, the examiner indicated the Veteran's service treatment records showed a single isolated blood pressure reading of 120/80. Per the examiner, since then, multiple clinic blood pressure checks were normal including normal blood pressure in March 1996 (106/68), and normal blood pressure after discharge, as well as during a December 1997 Ratings General Medical Examination. Further, hypertension is not diagnosed by a single abnormal blood pressure reading but requires elevated blood pressure readings at least two times and on separate occasions. The examiner indicated the single isolated blood pressure reading in December 1977 on a repeat blood pressure reading showed a normal reading, with subsequent normal readings afterwards. The examiner noted that a review of available records after the Veteran left service showed the Veteran was first diagnosed with hypertension at the January 2008 VA examination. The examiner also noted that the examination reflected the Veteran had a high body mass index (BMI) of 34.3 with a weight of 212 lbs. The examiner documented, per UpToDate Topic 3852 version 63, that the Veteran was diagnosed with essential hypertension, and that the known risk factors for the Veteran that could initiate hypertension included high BMI and advanced age. As such, the examiner determined the presence of hypertension could be attributed to the presence of risk factors in the Veteran. In rendering the opinion, the examiner added that, per UpToDate Topic 3852 version 63.0, Agent Orange exposure is not listed as an established risk factor for hypertension at this point. However, the examiner did not address the NAS Institute of Medicine study. In June 2021, a VA examiner provided an addendum opinion and considered the recent update to the NAS Institute of Medicine study finding that there is enough epidemiologic evidence to conclude appositive association between hypertension and herbicide exposure. The examiner noted that an RO has determined Agent Orange exposure for the Veteran and opined the Veteran's hypertension is at least as likely as not related to the acknowledged Agent Orange exposure based on the updated 2018 NAS Institute of Medicine report. The Board finds that the June 2021 VA medical opinion is adequate to decide the claim, as the June 2021 medical opinion is the only one of record to consider the 2018 NAS Institute of Medicine report as directed by the Board's prior remand. As a result, service connection for hypertension is granted. Jason George Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Spielmann, Jill F. 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.