Citation Nr: 22018208 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-22 171 DATE: March 28, 2022 ORDER Entitlement to a rating in excess of 30 percent for hypertensive heart disease is denied. REMANDED Entitlement to a rating in excess of 10 percent for hypertension is remanded. FINDING OF FACT The Veteran's service-connected heart disability was not manifested by more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for hypertensive heart disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.104, Diagnostic Code 7007. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1981 to November 1984 and from March 2001 to February 2002. This matter is before the Board following his appeal of an October 2012 rating decision. In his May 2014 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ). However, in June 2017 correspondence submitted to VA, the Veteran withdrew that request. In March 2018, the Board remanded the Veteran's claim for further development, which has since been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Following issuance of the most recent Supplemental Statement of the Case (SSOC) in September 2019, the Veteran underwent another VA heart conditions examination, and additional treatment records were added to the claims file. The agency of original jurisdiction (AOJ) issued a rating decision in October 2021 adjudicating entitlement to an increased rating for the Veteran's hypertensive heart disease, but it did not issue another SSOC. Nevertheless, as the October 2021 rating decision reflects adjudication of the claim based on the new evidence, the Board finds that seeking a waiver of initial AOJ review of that evidence is not necessary. The Veteran is in receipt of service connection for both hypertensive heart disease, rated at 30 percent under Diagnostic Code 7007 and hypertension, rated at 10 percent under Diagnostic Code 7101. Over the course of the appeal, the Veteran has used the terms interchangeably and both claims have been considered separately and together. However, as discussed in the remand section below, there is a June 2014 rating decision and notice of disagreement regarding his claim for an increased rating for hypertension. Therefore, the present Board decision will limit the discussion to the Veteran's hypertensive heart disease. 1. Entitlement to a rating in excess of 30 percent for hypertensive heart disease Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The Veteran is currently rated at 30 percent under Diagnostic Code 7007 for his hypertensive heart disease. 38 C.F.R. § 4.104, Diagnostic Code 7007. As applicable to evaluating this condition under Diagnostic Code 7007, 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, Note 2. Prior to November 14, 2021, under Diagnostic Code 7007, a 30 percent rating is assigned when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted if there has been more than one episode of acute congestive heart failure in the past year; or if a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted if there is chronic congestive heart failure; or if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Effective November 14, 2021, the criteria for rating certain cardiovascular disorders were revised. For Diagnostic Code 7007, there is now a General Rating Formula for diseases of the heart. Under that formula, a 30 percent evaluation is warranted where a workload of 5.1 to 7.0 METs results in heart failure symptoms; or there is evidence of cardiac hypertrophy or dilation confirmed by an echocardiogram or the equivalent (e.g., multigated acquisition scan or magnetic resonance imaging). A 60 percent evaluation is warranted where a workload of 3.1 to 5.0 METs results in heart failure symptoms. A 100 percent evaluation is warranted where a workload of 3.0 METs or less results in heart failure symptoms. Schedule for Rating Disabilities: The Cardiovascular System, 86 Fed. Reg. 54089, 54093 (September 30, 2021) (to be codified at 38 C.F.R. § 4.104). For the general formula, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the old rating criteria prior to November 14, 2021, and both the old and new rating criteria from November 14, 2021. The criteria that are more favorable to the Veteran will be applied. A March 2010 rating decision granted service connection for hypertensive heart disease, assigning an initial evaluation of 30 percent effective May 28, 2009, based on a stress test showing METs of 7. The Veteran submitted the instant claim for an increased rating for his service-connected hypertensive heart disease in September 2010. In a March 2014 echocardiogram report, ejection fraction was normal at 67 percent by echocardiogram and the left ventricle was normal in size and function. In May 2014, the AOJ issued a statement of the case continuing the Veteran's 30 percent rating. The claim was remanded by the Board in May 2018 for an updated VA examination. A VA examination was conducted in August 2019. The examiner noted diagnoses of supraventricular arrhythmia, cardiomyopathy, and hypertensive heart disease. The Veteran reported symptoms of dizziness, elevated blood pressure, head and abdominal pain, and irregular heartbeats. The examiner noted continuous medication was required. The Veteran had a myocardial infarction in 2007. He did not have congestive heart failure. The Veteran had intermittent cardiac arrhythmia noted on EKG more than 4 times over the prior 12 months. No heart valve condition, infectious heart condition, pericardial adhesion, cardiac hypertrophy, or cardiac dilation was noted. Chest x-ray and echocardiogram were read as normal, an EKG was noted with an irregular sinus rhythm. Left ventricular ejection fraction of 68 percent was noted. The examiner noted that a 2010 exercise stress test showed fair exercise tolerance, exercise induced fatigue and chest pain and a level 7 of METs. Interview-based METs testing conducted during the 2019 examination indicated a level of 1 to 3 METs due to dyspnea, fatigue, angina, dizziness, and diaphoresis. The examiner stated that the exercise stress test most accurately reflected the Veteran's current cardiac functional level but noted that a recent stress test that reflected his current heart functioning should be conducted. The examiner did not state that exercise stress testing was contraindicated. In a September 2019 supplemental statement of the case, the AOJ denied the claim for an increased rating. In an October 2019 statement, the Veteran reported increased and additional symptoms, including dizziness, weakness, memory loss, and the necessity for additional medication. The Veteran underwent another VA heart examination in August 2021. The examiner noted a diagnosis of hypertensive heart disease. The Veteran reported symptoms of occasional chest pain, at least two times per week, and headaches and dizziness. The examiner noted continuous medication was required. The Veteran did not have congestive heart failure, cardiac arrhythmia, infectious heart condition, pericardial adhesion, cardiac hypertrophy, or cardiac dilation. The examiner noted a mitral valve insufficiency but stated that it was likely unrelated to his claimed disorder. Chest x-ray and echocardiogram were read as normal, an EKG was noted with sinus bradycardia and minimal left-percordial repolarization disturbance. An exercise stress test was not performed as the examiner noted it was not required as part of the Veteran's current treatment plan and the test was not without significant risk. Interview-based METs testing indicated a level of 7-10 METs due to dyspnea, fatigue, and dizziness. Left ventricular ejection fraction of 60 percent was noted. In an October 2021 rating decision, the AOJ continued the Veteran's 30 percent rating for his hypertensive heart disease. Upon review of the record, the Board finds that a rating in excess of 30 percent for the Veteran's hypertensive heart disease is not warranted under either the old or amended rating criteria. The Veteran has not been shown to have chronic congestive heart failure at any time during the claim period. Left ventricular ejection fraction has also not been shown to be 50 percent or less. At worst, the Veteran's left ventricular ejection fraction was 60 percent via echocardiogram, in August 2021. There is evidence of dyspnea, fatigue, angina, and dizziness, and the Board acknowledges that the August 2019 VA examiner concluded that interview-based METs testing reflected a level of 1 to 3 METs due to dyspnea, fatigue, angina, dizziness, and diaphoresis. However, that examiner also concluded that a prior exercise stress test, showing a METs level of 7, most accurately reflected the severity of the Veteran's disease. Notably, the August 2021 VA examiner reported a level of 7 to 10 METs with interview-based METs testing, corroborating the August 2019 examiner's conclusion regarding the accuracy of the prior exercise stress test. The August 2021 VA examiner also explained why exercise stress testing was not performed. Considering the totality of reported symptoms and the medical findings of record, the Board finds that the Veteran's overall picture of disability most closely approximates the criteria for a 30 percent rating throughout the claim period. The Veteran is competent to report symptoms he experiences, to include chest pain, shortness of breath, and fatigue. However, the Board finds that the Veteran's own lay statements, coupled with the interpretive findings of the VA examiners, do not identify impairment that meets the schedular criteria for a rating in excess of 30 percent for his heart disability. The Board finds the VA examinations and opinions and other medical treatment notes to be probative as to their discussions of the Veteran's symptoms and test findings, as they thoroughly discuss those test findings and the cardiac condition, symptoms, and severity with supporting rationale. In short, the Board finds that the evidence is not in approximate balance on the question of whether a rating in excess of 30 percent is warranted for the Veteran's heart disability. See 38 C.F.R. § 4.104, Diagnostic Code 7007; see also 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation for the Veteran's heart disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted. Accordingly, the criteria for a rating in excess of 30 percent for a heart disability have not been met, and the claim is denied. REASON FOR REMAND Entitlement to a rating in excess of 10 percent for hypertension is remanded. Remand is necessary to provide the Veteran with a statement of the case. A June 2014 rating decision denied the Veteran's claim for an increased rating for hypertension. In a June 2014 notice of disagreement, the Veteran explicitly appealed this decision. To date, the AOJ has not issued a statement of the case in this matter. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an increased rating for hypertension. If, and only if, the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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.