Citation Nr: 22015648 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 15-32 194 DATE: March 18, 2022 ORDER Entitlement to a 100 percent disability rating for the Veteran's service-connected coronary artery disease (CAD), from March 5, 2010, to June 5, 2013, is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for the Veteran's service-connected CAD for the period prior to March 5, 2010, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to April 28, 2010, is remanded. FINDING OF FACT For the period beginning March 5, 2010, the evidence persuasively demonstrates that the Veteran's CAD more closely approximated the criteria for a 100 percent disability rating. CONCLUSION OF LAW The criteria for establishing entitlement to a 100 percent disability rating for the Veteran's service-connected CAD, effective March 5, 2010, have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.159, 3.321, 4.104, Diagnostic Code (DC) 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1961 to July 1964 and from September 1964 to September 1967. He died in December 2017. The appellant is his surviving spouse who has successfully substituted as appellant on the Veteran's claims which were pending prior to his death in 2017. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection of CAD. The Appellant withdrew her request for a Board hearing in an October 2021 statement. See 38 C.F.R. § 20.704(e). The Board notes that a July 2015 rating decision granted the Veteran a 100 percent rating for his CAD, effective June 3, 2013. As this is the maximum rating available for that disability, and also constitutes a total rating, the question of an increased rating for that period is not for consideration. As such, the Board has characterized the appeal to reflect the various periods for which the Veteran was not in receipt of a total rating only. To the extent that this decision bifurcates the increased rating claim for CAD based on different parts of the appeal period (prior to and after March 5, 2010), while the Board recognizes a preference to keep an increased rating claim as a single claim, given that the Board is able to grant a total rating from March 5, 2010, at this time, it will not delay that benefit pending the outcome of an addendum opinion for the period prior to that date. The July 2015 rating decision also granted entitlement to TDIU, effective April 28, 2010. To the extent that the appeal stems back to the initial date of service connection, and the record reflects that the Veteran's CAD may have affected his ability to obtain and maintain gainful employment, the question of entitlement to TDIU prior to April 28, 2010, is part and parcel of this appeal, and is included as part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise the lower rating will be assigned. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). 1. Entitlement to an increased rating for coronary artery disease, from March 5, 2010, to June 5, 2013. The Veteran's CAD is currently rated as 10 percent disabling for the period on appeal prior to April 28, 2010, and 60 percent disabling for the period on appeal prior to June 5, 2013, pursuant to Diagnostic Code 7005. Under DC 7005, a 10 percent rating is warranted when the Veteran has a workload of greater than 7 METs but not greater than 10 METs which results in dyspnea fatigue, angina, dizziness, or syncope, or when continuous medication is required. A 30 percent rating is warranted when there is a workload of greater than 5 METs but not greater than 7 METs which results in dyspnea, fatigue, angina, dizziness, or syncope or; evidence of cardiac hypertrophy or dilation on echocardiogram, EKG, or X-ray. A 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs (metabolic equivalent), but not greater than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted when there is chronic congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. 38 C.F.R. § 4.104, DC 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. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, 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, Note 2. The pertinent evidence of record reveals that, for the period on appeal beginning March 5, 2010, the Veteran's CAD more closely approximated the criteria for a total 100 percent disability rating. The medical evidence reveals that for this period the Veteran required continuous medication for his CAD. The Board notes that a March 5, 2010, echocardiogram measured the Veteran's LVEF as 24.5 percent. Additionally, a later March 2010 Cardiology outpatient note again noted the Veteran had an LVEF of between 25-30 percent. A July 2010 echocardiogram measured the Veteran's LVEF as 31.5 percent. The Veteran was provided an October 2010 VA Ischemic Heart Disease examination. The examiner indicated that continuous medication was required for the control of the Veteran's heart condition. The Veteran's METs were estimated to be between 3-5 METs, with symptoms of fatigue. The examiner cited to the July 2010 echocardiogram in noting that the Veteran had a LVEF of between 30-35 percent. No mention of the March 2010 echocardiogram is made. The Veteran was next afforded a July 2011 VA Ischemic Heart Disease examination. The examiner noted that the Veteran required continuous medication for his heart disability. The Veteran's METs were estimated to be between 3-5 METs, with symptoms of dyspnea, fatigue, and dizziness. No congestive heart failure was reported, and this examiner relied on the July 2010 echocardiogram noting the Veteran's LVEF as between 30-35 percent. No mention of the March 2010 echocardiogram is made. Although a 100 percent rating is already in effect from June 5, 2013, the Board notes that the Veteran was next provided an echocardiogram that month. This echocardiogram noted that the Veteran's LVEF was between 25-29 percent. The Board also notes a June 2013 treatment note which indicated the Veteran's LVEF was 20 percent. Further a September 2013 treatment note reported the Veteran's LVEF as 25 percent. Next, the Veteran was provided with a July 2015 VA Heart Conditions examination. No congestive heart failure was reported, though continuous medication was required to control the Veteran's heart condition. The Veteran's LVEF was reported to be 20 percent. The examiner further indicated that the Veteran's METs level is easily estimated at being around 1-3 METs based on the Veteran's disease, level of physical activity, reported symptoms, and LVEF of 20 percent. Based on the foregoing, resolving all reasonable doubt in favor of the Veteran, the Board finds that a disability rating of 100 percent is warranted for the Veteran's CAD for the period beginning March 5, 2010. In weighing the evidence of record, particularly the Veteran's treatment notes, VA examinations, private examinations, and competent lay statements the Board finds that the evidence is at least in equipoise regarding whether the Veteran was entitled to a 100 percent disability rating for his service-connected CAD disability for this period. While there is a July 2010 echocardiogram which measures the Veteran's LVEF as 31.5 percent, the Board notes that measurements taken both before and after this July 2010 reading indicate the Veteran's LVEF was in the low- to mid-20 percent range. Additionally, the October 2010 and July 2011 VA examinations based their analysis on the July 2010 echocardiogram solely, without reference to the earlier, more severe, readings. As such, the Board finds the evidence persuasively favors that the Veteran's LVEF was more severe than reflected in the July 2010 reading. As the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran, entitlement to a total disability rating is warranted for the period beginning March 5, 2010. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. As 100 percent is the maximum rating allowed under Diagnostic Code 7005, this constitutes a full grant of the benefits sought on appeal for this period. REASONS FOR REMAND 2. Entitlement to an increased rating for coronary artery disease, prior to March 5, 2010, is remanded. The 10 percent evaluation awarded during the period prior to March 5, 2010, for the Veteran's CAD was assigned using the criteria listed in 38 C.F.R. § 4.104, Diagnostic Code 7005. Specifically, the 10 percent evaluation was assigned because the Veteran's condition was noted to require continuous medication. Specific testing to determine the severity of the Veteran's CAD as per VA rating criteria, to include associated symptomatology, was not undertaken during the period prior to March 5, 2010. As such, there is no evidence of the Veteran's demonstrated METs level or left ventricular dysfunction or ejection fraction prior to March 5, 2010. The evidence of record does not provide adequate insight into the Veteran's disability picture prior to March 5, 2010. In this regard, the evidence, does include notations of the Veteran's service-connected CAD and associated symptomatology which, under the rating criteria, a medical examiner could use to estimate the level of activity and resulting METs. As such a retrospective medical determination is beyond the Board's purview, a remand is necessary. Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated); Colvin v. Derwinski, 1 Vet. App. 171 (1991) (the Board is not competent to supplement the record with its own unsubstantiated medical conclusions, but VA is always free to supplement the record by seeking an advisory opinion to support its ultimate conclusions). 3. Entitlement to TDIU prior to April 28, 2010, is remanded. Given the above grants for an increased rating claim, consideration of the appeal seeking an earlier effective date for TDIU must be deferred. Entitlement to TDIU, to include SMC, is inextricably intertwined with implementation of the Board's decision granting increased VA compensation benefits for the Veteran's disability and these grants could significantly impact a decision on the issue of entitlement to TDIU. Further, the Board notes the issue of entitlement to TDIU to include SMC must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Obtain a retrospective opinion from a cardiologist, or other similarly qualified examiner, with sufficient expertise to opine on the severity of the Veteran's CAD disability for the period prior to March 5, 2010. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Specifically, using the Veteran's and the appellant's lay statements, as well as the medical evidence of the record, the examiner is asked to provide a retrospective estimate, or estimates, of the workload METs that would have resulted in dyspnea, fatigue, angina, dizziness, or syncope for the Veteran during the period on appeal prior to March 5, 2010, as a result of the Veteran's service-connected CAD. For purposes of this opinion, the examiner should assume that the Veteran and the appellant are reliable historians and must not ignore their competent reports of injuries, or of symptoms experienced. In this regard, the examiner must discuss and consider the competent lay statements of record. (Continued on the next page) The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.