Citation Nr: 18124061
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 09-27 879
DATE:	August 7, 2018
ORDER
Entitlement to an initial disability rating of 100 percent for service-connected heart disability is granted from the earlier effective date of January 22, 2008 (resolving both the increased rating issue and the effective date issue concerning the heart disability rating on appeal).
FINDING OF FACT
The Veteran’s service-connected heart disease has been productive of chronic congestive heart failure throughout the period on appeal from January 22, 2008, onward.
CONCLUSIONS OF LAW
1. The criteria for a disability rating of 100 percent for the Veteran’s service-connected heart disease have been met throughout the period on appeal from January 22, 2008, onward.  38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, and 4.104, Diagnostic Code 7099-7000.
2. The criteria for an effective date of January 22, 2008, for a 100 percent rating for service-connected heart disease have been met.  38 U.S.C. §§ 1154(a), 1155, 5107(b), 5110; 38 C.F.R. § 3.102, 3.400, 4.3, 4.7, 4.104, Diagnostic Code 7099-7000.
REASONS AND BASES FOR FINDING AND CONCLUSIONS
The Veteran served on active duty from June 1962 to June 1982.  This case originally came to the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan that granted service connection for heart disease and assigned an initial rating of 10 percent effective from January 22, 2008.  In July 2012, the Veteran testified before the undersigned in a Board videoconference hearing.  In November 2012, the Board remanded this issue for additional evidentiary development.  In March 2013, the RO issued a rating decision granting a 100 percent rating for the service-connected heart disease effective from July 7, 2012; the Veteran maintained the appeal for a 100 percent rating to be effective prior to that date.
The Veteran not only maintained his appeal for an increased initial heart disease rating, but also filed a notice of disagreement in December 2013 describing his contentions in terms of seeking an earlier effective date for the award of the 100 percent rating.  This was processed as a new appeal, and a new statement of the case was issued in February 2017 recognizing the effective date issue in parallel to the pending increased initial rating issue that seeks substantially the same benefit.  The Veteran has now perfected an appeal of the effective date issue and it has joined the increased rating issue in appellate status.  These separate but intertwined appeal streams have been merged for appellate review by the Board at this time, and the effective date issue is now before the Board for the first time.
Returning to the procedural history of this case, the heart disability rating issue was again remanded by the Board for additional evidentiary development in November 2015.  In August 2017, the RO granted an increased 30 percent initial rating for the service-connected heart disability for the period prior to July 7, 2012.  The heart disease initial rating issue, now joined with the substantially identical effective date issue for the 100 percent rating, has now returned to the Board for appellate review.
[The Board notes that other issues in appellate status were most recently addressed by the Board in a February 2017 decision that remanded the issues to the Agency of Original Jurisdiction (AOJ).  Because those issues have not been re-certified to the Board, they are not before the Board at this time.]
Entitlement to a 100 Percent Rating for Service-Connected Heart Disease Prior to July 7, 2012, Under Increased Rating and Effective Date Laws
The Veteran has already established entitlement to a 100 percent disability rating for his heart disease effective from July 7, 2012.  He contends that he has met the criteria for the same 100 percent disability rating throughout the period prior to that date.  The Board agrees with the Veteran and here awards him entitlement to the highest rating available under the law (100 percent) effective from the earliest effective date available under the law (the settled effective date of the award of service connection for the disability: January 22, 2008).
Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
The Veteran’s service-connected heart disease has been rating as 30 percent disabling under Diagnostic Code 7099-7001 for the period prior to July 7, 2012.
Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned.  38 C.F.R. § 4.27.  The hyphenated code in this case is intended to show that the Veteran’s complex constellation of heart diagnoses are rated by analogy to valvular heart disease under 38 C.F.R. § 4.104, Diagnostic Code 7000.  See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous); 38 C.F.R. § 4.27 (unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then ‘99.’)
Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
With a claim for an increased initial rating (as in this case), separate “staged” ratings may be assigned based on facts found.  Fenderson v. West, 12 Vet. App. 119 (1999).
38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Kahana v. Shinseki, 24 Vet. App. 428 (2011).
Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  Competent medical evidence also includes statements contained in authoritative writings such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).
The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided.
In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms.  Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings.  The Board has also considered the history of the Veteran’s disability prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal.
Under Diagnostic Code 7000, which defines rating criteria for valvular heart disease, a 100 percent rating is warranted when there is chronic congestive heart failure; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent.  38 C.F.R. § 4.104, Diagnostic Code 7017.
The Board observes that various other diagnostic codes for other particular diagnoses of heart disease also provide a 100 percent rating for this level and nature of impairment.
For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters per kilogram of body weight per minute.  Id., at 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 for disability rating purposes.  Id.
A review of the pertinent medical evidence in this case leads the Board to conclude that, resolving reasonable doubt in the Veteran’s favor, the criteria for a 100 percent rating were met since the beginning of the rating period on appeal.
The evidence of record includes multiple letters from Dr. Meri, the Veteran’s long-term private treating physician.  These letters explain some of the complexity that prevented contemporaneous medical detection of all of the pertinent details of the Veteran’s heart disease prior to July 7, 2012, and further explains what medical conclusions may now be drawn from the information currently available regarding the Veteran’s heart disease prior to July 7, 2012.  The February 2013 letter describes that the authoring doctor has been treating the Veteran “for several years now,” and explains that the Veteran “began having evidence of CHF [congestive heart failure] (Diastolic Dysfunction) since 2002.”  The doctor notes that the Veteran “had the beginning of coronary artery disease on a cardiac catheterization performed by Dr. Yun in 2002, but did not require intervention at that time.  In the years to follow, he began to develop increasing shortness of breath and lower extremity swelling which required hospitalizations and some were treated as outpatient.”  The February 2013 letter explains: “Despite negative stress tests, finally in May 2012 when he presented with progressive shortness of breath, fatigue, and chest pain that were not responding to the usual medical treatment, this time we immediately took him for a heart catheterization and found that he has multi-vessel coronary artery disease….”  Significantly, the February 2013 letter presents the treating doctor’s following explanation:
It was known all along that his CHF [congestive heart failure] was the direct cause of his long standing Hypertension along with the multiple episodes of Pericarditis, but not knowing that he also had coronary artery disease as another cause.  At this point it is clear that [the Veteran]’s CHF is secondary not only to the above mentioned causes, but also coronary artery disease (or arteriosclerotic heart disease).  Given the nature of his symptoms of shortness of breath and chest pain that began around 2002 and took on a persistent and severe nature starting in 2007 and progressively worsening since that time, his coronary artery disease more likely than not has been there prior to that date and eventually reached a critical state that started to cause symptoms.
A February 2011 letter from Dr. Meri also describes that at that time it was already known that the Veteran “suffers from Congestive Heart Failure of the diastolic type which is no less disabling that systolic congestive heart failure.”  A July 2012 letter from Dr. Meri describes that “[o]ver the past few years it became apparent that [the Veteran] is suffering from Chronic Congestive Heart Failure (Diastolic Dysfunction) which necessitated hospital admission and subsequently managed with outpatient medications to keep the exacerbations to a minimum.”  [Emphasis added.]  This letter also noted that “[i]t was known all along that this was the direct cause of his long standing Hypertension along with the multiple episodes of Pericarditis, but not knowing that he also had coronary artery disease as another cause,” and the letter explained that “[r]ecently, we discovered that [the Veteran] who has been having normal stress tests is in the minority of patients who have negative stress tests despite having underlying coronary artery disease.”  Dr. Meri stated:
At this point it is clear that [the Veteran]’s CHF (Congestive Heart Failure) is secondary to coronary artery disease ….  Given the nature of his symptoms of shortness of breath and chest pain that took on a persistent and severe nature starting in 2007 and progressively worsening since that time, his coronary artery disease more likely than not has been there prior to that date ….
The complex array of details regarding the Veteran’s history of heart disability are not completely clear, but the Board finds that Dr. Meri’s statements describe a history of congestive heart failure that is medically noted to be “Chronic” in the July 2012 letter and is otherwise indicated to have existed significantly prior to the date of the July 2012 letter.  The other statements of Dr. Meri, including the February 2013 letter, indicate that the Veteran “began having evidence of CHF [congestive heart failure] (Diastolic Dysfunction) since 2002,” and that the congestive heart failure was associated with increasingly severe impairment by 2007.  The Board finds that a reasonable interpretation of this information is that the Veteran has suffered from chronic congestive heart failure associated with his service-connected heart disease since at least as early as the January 22, 2008, effective date of the award of service connection for the heart disease.
The Board notes that an August 2017 VA medical opinion addressing this matter acknowledged documented medical evidence of record indicating congestive heart failure during the period on appeal prior to July 2012, and the VA examiner stated: “Regarding congestive heart failure, per the review of veteran’s medical records, he had exacerbations of his CHF, requiring several follow ups, medications, tests, his symptoms were worsening during this period.”  The VA examiner also stated: “I do agree with the input in the medical records from his non-VA PCP’s, Cardiologists on veteran’s diagnoses pertaining to his heart conditions, the possible duration of veteran’s CAD, CHF that veteran had.”
Additional references to the Veteran’s heart disabilities are presented in additional evidence of record beyond the pertinent evidence discussed by the Board in this decision. The additional evidence of record does not change the Board’s view that the competent and probative evidence discussed above reasonably indicates that the Veteran has had chronic congestive heart failure since at least January 22, 2008.  Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected heart disease has manifested in chronic congestive heart failure throughout the period on appeal from January 22, 2008.  Therefore, the criteria for a 100 percent rating have been met throughout the period on appeal.  The appeal for an increased rating for the heart disease is granted in full by the award of a 100 percent rating throughout the period beginning with the effective date of the disability’s service-connected status.
In addition to the longstanding appeal for an increased rating for the heart disability, the RO has additionally recognized the Veteran’s December 2013 written statement as a notice of disagreement appealing for an earlier effective date for the grant of a 100 percent rating for the heart disease (when that grant was made effective from July 7, 2012, by the March 2013 RO rating decision).  In essence, this effective date appeal seeks the same outcome as the rating appeal: a 100 percent rating from the January 22, 2008, effective date of the award of service connection for the heart disability.  The Board notes that the Veteran did not appeal the January 22, 2008, effective date for the award of service connection for the heart disability that was assigned by the RO’s July 2009 rating decision, nor was new and material evidence regarding that effective date received within a year following the July 2009 rating decision.  The assignment of January 22, 2008, as the effective date for the award of service connection for the heart disease is final and is not in controversy in this appeal.  38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.302.
The Veteran acknowledges that January 22, 2008, is the filing date of his claim to establish entitlement to service-connected compensation for the heart disease.  The Veteran’s December 2013 notice of disagreement regarding the effective date of the grant of a 100 percent rating for the heart disease argues:
Congestive Heart Failure for which I was awarded 100% disability was definitely diagnosed in 2007, prior to me applying for VA benefits[,] therefore the effective date should be no later than the day I applied for those benefits[,] which is January 22, 2008 or prior, not the day the operation took place or a few days after when I appeared before the VA for my appeal.
The Board agrees with the Veteran.  As explained above, the Board finds that a 100 percent rating is warranted for the service-connected heart disease throughout the period on appeal beginning with the January 22, 2008, effective date of the grant of service connection (the date he filed the claim for service connection).  This is the earliest possible effective date for the rating because any earlier date would precede the effective date of the award of service-connected status for the disability, and service-connected disability ratings cannot be effective for periods when the disability’s service-connected status is not in effect.  Again, the January 22, 2008, effective date for the award of service connection for the heart disease is a final determination that is not in appellate status before the Board at this time, and the Veteran does not challenge that effective date assignment.
The Board has fully resolved the appeal in the Veteran’s favor with a full grant of the maximum benefit available under the law.  The Veteran is entitled to a 100 percent disability rating for his service-connected heart disability throughout the entire period for which service-connection has been in effect for that disability.  This outcome is a full grant of the increased rating issue on appeal and furthermore resolves the appeal for an earlier effective date with the assignment of the earliest effective date for a rating available under the law.
 
M. C. GRAHAM
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Barone, Counsel 

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