Citation Nr: 22017585 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-28 563A DATE: March 25, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for heart disease to include coronary artery disease (CAD) is denied. FINDINGS OF FACT 1. (Pre-amendment) Metabolic equivalent (MET) testing shows that at a workload of greater than 5.0 but not greater than 7.0 METs, the Veteran's CAD results in heart failure symptoms to include dyspnea, angina, and fatigue, but no such symptoms at a workload of 5.0 METs or less, and there is no evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent or more than one episode of active congestive heart failure in the past year. 2. (Post-amendment) MET testing shows that at a workload of 5.1-7.0 METs, the Veteran's CAD results in heart failure symptoms, but no such symptoms at a workload of 5.0 METs or less. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from September 1983 to February 1984, from October 2001 to April 2002, and from October 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran subsequently submitted a notice of disagreement dated November 2016, specifically disagreeing with the 10 percent disability rating prescribed in the November 2016 rating decision. In May 2017, the RO promulgated a rating decision bumping the Veteran to a 30 percent rating from November 1, 2016 and also promulgating a Statement of the Case denying a rating in excess of 30 percent. The Veteran perfected the appeal by a June 2017 VA Form 9. The Board remanded the issue for further development in June 2020. The claim has been returned to the Board for appellate review. The Board notes that actions requested in the prior remand have been undertaken. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Entitlement to a disability rating in excess of 30 percent for heart disease to include CAD, is denied. The Veteran asserts that he is entitled to a 60 percent disability rating for his service-connected CAD. See November 2016 notice of disagreement. Legal Criteria Effective November 14, 2021, VA amended the rating criteria for arteriosclerotic heart disease (coronary artery disease) under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005. 86 Fed. Reg. 54089 (Sep. 30, 2021). This amended regulation applies to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after November 14, 2021. Claims pending prior to the effective date will be considered under both the pre- and post-amendment rating criteria, and whichever is more favorable to the Veteran will be applied. However, the Board may not apply the post-amendment rating criteria to a period prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Conversely, the Board is not precluded from applying the pre-amendment rating criteria to a period on or after the effective date of the post-amendment rating criteria so long as it was in effect during the pendency of the appeal. The pre-amendment rating criteria provides: Prior to November 14, 2021, under 38 C.F.R. § 4.104, DC 7005, for arteriosclerotic heart disease (coronary artery disease) a 10 percent rating is warranted where a workload of greater than 7.0 metabolic equivalents (METs) but not greater than 10.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is warranted where a workload of greater than 5.0 METs but not greater than 7.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3.0 METs but not greater than 5.0 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 rating is warranted where there is chronic congestive heart failure, or; a workload of 3.0 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Under the pre-amendment rating criteria, 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. 38 C.F.R. § 4.104, Note (2). 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. Id. For the purposes of a 60 percent evaluation, the pre-amendment rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase "30 to 50 percent" means 30 percent through 50 percent. Id. at 380. For the purposes of a 100 percent evaluation, the pre-amendment rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382. The amended rating criteria provides: Effective November 14, 2021, under 38 C.F.R. § 4.104, DC 7005, arteriosclerotic heart disease (coronary artery disease) is rated in accordance with the General Rating Formula for Diseases of the Heart. A 10 percent rating is warranted where a workload of 7.1-10.0 METs results in heart failure symptoms, or continuous medication is required for control. A 30 percent rating is warranted where a workload of 5.1-7.0 METs results in heart failure symptoms, or where there is cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging). A 60 percent rating is warranted where a workload of 3.1-5.0 METs results in heart failure symptoms. A 100 percent rating is warranted where a workload of 3.0 METs or less results in heart failure symptoms. Under the post-amendment rating criteria, 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. 38 C.F.R. § 4.104, Note (2). 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, 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 those symptoms may be used. Id. For purposes of the General Rating Formula for Diseases of the Heart, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. 38 C.F.R. § 4.104, Note (3). Factual Background and Legal Analysis The Veteran was afforded VA examinations in February 2016, September 2016, and February 2018 in connection with his CAD. The June 2020 Board remand required that the Veteran be afforded a new in-person examination, which was provided in February 2021. The February 2016 VA examination consisted of a review of available records and a telephone interview, without an in-person or telehealth examination. The examiner noted that there was no cardiac hypertrophy, dilatation, or congestive heart failure and that the Veteran required continuous medication. The examiner noted the left ventricular ejection fraction to be 55-60 percent. The September 2016 VA examiner opined that a February 2016 echocardiogram shows a 55-60 percent left ventricular ejection fraction. The examiner noted that there was no cardiac hypertrophy, dilatation, or congestive heart failure and that the Veteran required continuous medication. The examiner conducted an interview-based METs test and opined that the Veteran reported dyspnea, fatigue, and angina with greater than 5.0 but not greater than 7.0 METs. This METs level was consistent with activities such as walking one flight of stairs, golfing (without cart), mowing the lawn (pushing mower), and heavy yard work (digging). The February 2018 VA examination was conducted based on a review of records and telephone interview. The examiner opined that the Veteran required continuous medication. The examiner also opined that the Veteran had not had acute congestive heart failure and that there was no evidence of cardiac hypertrophy or cardiac dilatation. The examiner provided results pertaining to the left ventricular ejection fraction based on the February 2016 examination (showing 55-60 percent) and from another test conducted in January 2017 which showed 64 percent. The examiner conducted an interview-based METs test and opined that the Veteran reported dyspnea and angina with greater than 5.0 but not greater than 7.0 METs. This METs level has been found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing the lawn (pushing mower), and heavy yard work (digging). The Veteran was afforded an in-person February 2021 VA examination. The examiner opined that the Veteran required continuous medication. The examiner also opined that the Veteran had not had acute congestive heart failure and that there was no evidence of cardiac hypertrophy or cardiac dilatation. The examiner cited the Veteran's January 2021 EKG and chest x-ray, as well as his February 2021 echocardiogram. The examiner relied upon the February 2021 echocardiogram to determine that the left ventricular ejection fraction was 60-65 percent. The examiner did not provide an exercise stress test because the Veteran's previous exercise stress test reflected current cardiac function. The examiner conducted an interview-based METs test in January 2021 and opined that the Veteran reported dyspnea and fatigue with greater than 5.0 but not greater than 7.0 METs. This METs level has been found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing the lawn (pushing mower), and heavy yard work (digging). The examiner further indicated that the METs level is solely related to the Veteran's claimed heart condition. Analysis based on pre-amendment rating criteria: Considering all relevant evidence of record, the Board finds that the Veteran is required to take continuous medication, does not have a history of cardiac hypertrophy or dilatation, and that the Veteran's METs levels are within the requisite range for a 30 percent disability rating. The Board notes that the VA examiners' findings are consistent in that the Veteran has heart failure symptoms with a workload of greater than 5.0 METs but not greater than 7.0 METs. The medical evidence is based on objective testing results, which have been consistent throughout multiple VA examinations, and which apply to the rating criteria. A higher 60 percent rating under DC 7005 is not warranted because the disability resulting in more than one episode of acute CHF 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 not shown. Thus, the Board concludes that the Veteran's heart disability did not meet the criteria corresponding to a higher 60 percent rating under DC 7005. Accordingly, the Board concludes that the Veteran's heart disability does not warrant a higher rating. Analysis based on amended rating criteria: The change in the rating criteria was effective after the February 2021 VA examination, the date of the most recent examination. While the pre-amendment 30 percent criteria contemplate a METs level of greater than 5.0 but not greater than 7.0, the amended 30 percent criteria contemplate a METs level of 5.1-7.0 and the amended 60 percent criteria contemplate a METs level of 3.1-5.0. The September 2016, February 2018, and February 2021 VA examiners assigned the Veteran a METs level of greater than 5.0 but not greater than 7.0. The examiners are united in specifying that the METs level was greater than 5.0. Therefore, the Veteran has a level of disability that is does not warrant a higher rating. (Continued on the next page) In sum, the Board finds that the competent and credible evidence of record persuasively establishes that the Veteran's heart disability does not warrant a higher rating during the period on appeal. Accordingly, the appeal is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mookim, Hope P. 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.