Citation Nr: 22017775 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 12-27 073A DATE: March 26, 2022 REMANDED Entitlement to a disability rating in excess of 60 percent for coronary artery disease (CAD) is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army on active duty from April 1968 to April 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2012 rating decision rating decision by the Veterans Benefits Administration (VBA). See January 2013 notice of disagreement. The Board remanded this matter in September 2017, April 2019, February 2021, and August 2021 to obtain outstanding relevant treatment records and adequate VA examinations. The Veteran also filed a claim for entitlement to a total disability rating based on individual unemployability (TDIU) beginning in April 2011, which VBA has granted. See February 2021 rating decision; May 2011 TDIU application. The only issue remaining on appeal before the Board at this time is entitlement to a higher schedular rating for CAD. The Board noted in its prior remand orders that the evidence of record indicated that the Veteran's aortic valve stenosis (resulting in an aortic valve replacement during the period on appeal) may be caused by his hypertension rather than his service-connected CAD. As the Board denied service connection for hypertension in August 2021, it is important to discern the extent to which the Veteran's heart limitations are the result of his CAD vs. aortic valve stenosis and the relationship (if any) the CAD has to the aortic valve stenosis. The Board remanded this matter to obtain new opinions on the relationship between CAD, hypertension, and the aortic valve stenosis. The August 2021 opinion VBA obtained on remand provides some rationale supporting a conclusion that the Veteran's CAD did not cause his aortic valve stenosis and that the aortic valve stenosis did not cause a "permanent" worsening of the CAD. However, the opinion does not assess the probability that the Veteran's CAD aggravated the aortic stenosis. Additionally, the United States Court of Appeals for Veterans Claims (CAVC) has clarified that any incremental increase in disability (any additional impairment of earning capacity) in non-service-connected disabilities resulting from a service-connected condition regardless of its permanence may be a basis for secondary service connection under 38 C.F.R. § 3.310. See Ward v. Wilkie, 31 Vet. App. 233 (2019); 38 C.F.R. § 3.310. Therefore, it is necessary to obtain another medical opinion in this case on the probability that the Veteran's service-connected disabilities aggravated the aortic valve stenosis, to include a temporary aggravation. Moreover, VBA did not obtain an additional function assessment of the Veteran's heart disabilities, which the Board finds is necessary to rate the severity of the Veteran's heart disabilities for several reasons. The rating criteria for heart disabilities was revised effective November 14, 2021, and VBA did not obtain a function assessment from a medical professional using the new criteria, which contains new standards that may support assigning a higher rating. For example, the revised criteria explicitly list additional symptoms including arrhythmia and palpitations that may constitute heart failure symptoms under the new criteria. See 38 C.F.R. § 4.104. See also August 2019 Occupational Medicine Note in the Veteran's VA treatment records (noting the Veteran experienced palpitations). It provides additional guidance on evaluating heart disabilities using METs (metabolic equivalents). Therefore, it is necessary to remand this matter for a new function assessment of the severity of the Veteran's functional limitations from CAD and the aortic valve stenosis under rating criteria prior to November 14, 2021, as well as the revised criteria effective November 14, 2021. If the Board determines the aortic valve stenosis has not been caused or aggravated by a service-connected disability, a medical opinion may assist the Board in separating out the functional limitations attributable to each heart disability for rating purposes. Finally, the previous examiners were asked to opine if it was "at least as likely as not (a 50 percent or greater probability)" that the Veteran's disabilities were connected to service, to include as secondary to service-connected disabilities. This language found in the previous remands entitled the Veteran to the benefit of the doubt if the evidence was in equipoise. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance - i.e. nearly equal - and does not require the evidence to be in exact equipoise. See id. VBA should ensure the examiner is aware of the correct standard under Lynch. The Board REMANDS this matter for the following actions: 1. VBA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. VBA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. After associating all outstanding medical records with the Veteran's claims file, VBA should afford the Veteran another examination of his heart disabilities. The new examination should provide an assessment of the severity of the Veteran's heart disabilities using the revised rating criteria effective November 14, 2021. See 38 C.F.R. § 4.104. The new criteria contain significant changes, and VBA should ensure the examiner's opinion is sufficient to evaluate the severity of the Veteran's disabilities under both the old criteria and the new criteria to the extent it is more favorable. For example, the new criteria provide expanded descriptions of how to evaluate the severity of the Veteran's disability by METs (metabolic equivalents) using exercise testing (or estimates in lieu of testing when appropriate). Examples of relevant heart failure symptoms to consider have been expanded in the revised criteria to include arrhythmia and palpitations, which were not listed in the criteria in effect prior to November 14, 2021. See also August 2019 Occupational Medicine Note in the Veteran's VA treatment records (noting the Veteran experiences palpitations). The new criteria do not include evaluations using the left ventricular ejection fraction standards mentioned in the older criteria. A medical opinion is necessary in this case to evaluate whether the Veteran is entitled to higher disability rating using the newer criteria. To the extent possible, the VA heart examiner should distinguish functional limitations caused by the coronary artery disease from those caused by the aortic stenosis and any other heart conditions the Veteran experiences. If it is not possible distinguish the limitations from each condition, the examiner should state so. After reviewing the record and conducting all necessary examinations of the Veteran, the VA heart examiner should opine whether it is at least as likely as not (at least an approximate balance of negative and positive evidence that the Veteran's service-connected disabilities (e.g. CAD) caused or aggravated the aortic stenosis. Temporary aggravation may suffice for secondary service connection. See Ward v. Wilkie, 31 Vet. App. 233 (2019). If the examiner is unable to provide an opinion on these matters, the examiner must state whether the inability to render an opinion is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy 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.