Citation Nr: 18154153
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-52 868
DATE:	November 29, 2018
ORDER
An initial evaluation in excess of 10 percent for coronary artery disease (CAD) prior to April 4, 2014, and in excess of 60 percent for the period beginning August 1, 2014, is denied.
FINDINGS OF FACT
1. Prior to April 4, 2014, the Veteran’s CAD was manifested by workload levels between 7 and 10 METs with subjective complaints of dyspnea; there was no evidence of congestive heart failure or left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent.
2. From August 1, 2014, the Veteran’s CAD has been manifested by workload levels between 3 and 5 METs and left ventricular dysfunction with an ejection fraction of no less than 50 percent; there was no evidence of chronic congestive heart failure.
CONCLUSION OF LAW
The criteria for an initial rating in excess of 10 percent for CAD prior to April 4, 2014, and in excess of 60 percent for the period beginning August 1, 2014, are not met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, DCs 7005-7017.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant served on active duty in the U.S. Army from July 1969 to March 1971, including service in the Republic of Vietnam.
This matter comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for CAD and assigned an initial 10 percent rating, effective June 18, 2013.  
During the pendency of the appeal, the Agency of Original Jurisdiction (AOJ), in an October 2016 rating decision, granted a 100 percent evaluation for his CAD from April 4, 2014 through July 31, 2014, and assigned a 60 percent evaluation for the period beginning August 1, 2014.  The Board has therefore recharacterized the issue on appeal as above in order to comport with that award of benefits.  
Turning to the evidence of record, Dr. M.S. completed a disability benefits questionnaire (DBQ) in June 2013.  The Veteran was diagnosed with CAD, status post percutaneous coronary intervention (PCI).  His treatment plan required continuous medication.  He had a history of PCI in 1997 and 2000.  He did not have congestive heart failure.  Non-walking Lexiscan was performed in March 2013.  The lowest level of activity at which the Veteran reported dyspnea was 7 to 10 METs or greater, a level consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging.  He endorsed dyspnea during such activity.  There was no evidence of cardiac hypertrophy or dilatation.  Left ventricular ejection fraction was not known.  It was noted that the Veteran’s ability to work was impacted, although Dr. M.S. provided no description of such impact.
The Veteran underwent coronary artery bypass graft (CABG) on April 4, 2014.  The aforementioned October 2016 rating decision assigned a 100 percent rating for three months following hospital admission for such.
A DBQ was completed by Dr. J.C. in May 2014.  The Veteran was diagnosed with CAD, status post PCI and CABG.  The CABG had been performed in April 2014.  The Veteran did not have congestive heart failure.  He experienced dyspnea and fatigue at 3 to 5 METs or greater, a level consistent with light yard work, mowing lawn, and brisk walking.  Left ventricular ejection fraction was not known.  Impact on the ability to work was not addressed.
A DBQ was completed by Dr. K.M. in July 2015.  The Veteran had CAD, status post CABG and stent.  He also had ischemic cardiomyopathy.  Continuous medication was required.  He did not have congestive heart failure.  The Veteran experienced dyspnea, fatigue, and angina at 3 to 5 METs.  There was evidence of cardiac hypertrophy or dilatation.  Left ventricular ejection fraction was 50 to 60 percent in March 2015.  Impact on the ability to work was not addressed.
The Veteran was afforded a VA examination in September 2016.  The claims file was reviewed.  He was diagnosed with acute, subacute, or old myocardial infarction, CAD, stable angina, cardiomyopathy, and CABG.  The Veteran reported that he has nine stents, the most recent of which was placed in August 2015.  He attends cardiopulmonary rehabilitation three times weekly, where he walks on a treadmill.  If he walks too fast or walks at an incline, he gets winded.  He does some work around the home, such as using a leaf blower, but his wife mows the lawn.  Continuous medication was required.  He had a myocardial infarction in April 2014.  He did not have congestive heart failure, cardiac arrhythmia, heart valve condition, infectious heart condition, or pericardial adhesions.  The Veteran was observed to walk without any assistance at a good pace.  His scar on the anterior chest was 14.5 cm by 0.3 cm, but the total area was not at least 39 square (sq.) cm (6 sq. inches) and was not painful or unstable.  CABG scars on the right lower leg and horizonal drain scars under the anterior chest scar were also present, but the total area was not at least 39 sq. cm (6 sq. inches) and there is no indication that such were painful or unstable.  March 2015 echocardiogram revealed evidence of cardiac hypertrophy.  There was no evidence of cardiac dilatation.  Interview-based METs test indicated that the Veteran experienced dyspnea, fatigue, and angina at 3 to 5 METs.  Such limitation was due solely to the Veteran’s heart diagnoses.  With respect to functional impact, it was noted that the Veteran reported shortness of breath from walking too fast for any length of time or when walking on an incline.
Private treatment records from Dr. K.M. indicate that ejection fraction was 55 to 60 percent in December 2014, January 2015, and March 2015.  In November 2014, it was noted that the Veteran was active.  As of December 2014, he had not experienced congestive heart failure.
VA medical records indicate that ejection fraction was 50 to 60 percent in June 2015.  Ejection fraction was 50 percent in May 2017.  Treadmill Bruce protocol in June 2018 revealed peak METs of 7; however, the Veteran had to stop due to chest pain.  A July 2018 cardiology pre-procedure note states that congestive heart failure was a comorbid condition.
The Board finds that evaluations in excess of 10 percent for the period prior to April 4, 2014, and in excess of 60 percent for the period beginning August 1, 2014, are not warranted in this case.  The reasoning is as follows.  
Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran.  38 C.F.R. § 4.3.
In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....”  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found.  Id.
The appellant’s service-connected coronary artery disease has been rated by analogy under Diagnostic Codes (DC) 7005-7017.
Under DC 7005 or 7017, a 10 percent rating is warranted if a workload of greater than 7 METs, but not greater than 10 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or if continuous medication is required.  38 C.F.R. § 4.104, DCs 7005, 7017.
A 30 percent rating is warranted if a workload of greater than 5 METs, but not greater than 7 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray.  Id.
A rating of 60 percent is assigned when there is more than one episode of congestive heart failure within the past year; where a workload of greater than 3 METs, but not greater than 5 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction (EF) of 30 to 50 percent.  Id. 
A rating of 100 percent is assigned for chronic congestive heart failure; or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent.  Id.
Additionally, under DC 7017, a 100 percent rating is warranted for three months following hospital admission for coronary bypass surgery.  38 C.F.R. § 4.104, DC 7017.
Regarding the period prior to April 4, 2014, as noted in the June 2013 DBQ, the Veteran did not experience dyspnea at 7 or fewer METs.  There was no evidence of cardiac hypertrophy or dilatation.  Continuous medication was required.
In this regard, the evidence shows that throughout the rating period on appeal, the Veteran had a workload of 7 to 10 METs and subjective complaints of dyspnea.  However, the evidence does not show workload of 7 METs or less, cardiac hypertrophy or dilatation, congestive heart failure, or left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent.  The Board observes that Dr. M.S. reported in June 2013 that METs level on the most recent interview was 7-10 METs.  There is no probative evidence to the contrary.  As such, an initial rating in excess of 10 percent prior to April 4, 2014, is not warranted as his METs and ejection fraction are not severe enough to warrant the award of such.  See 38 C.F.R. §§ 4.7, 4.104, DC 7005.  
Respecting the period beginning August 1, 2014, the most probative evidence establishes that the Veteran’s METs level was not less than 3, his left ventricular ejection fraction was not less than 30 percent, and he did not experience chronic congestive heart failure.
His METs level was 3 to 5 METs in July 2015 and September 2016.  A June 2018 clinical note indicates that peak METs during treadmill Bruce protocol was 7.  Additionally, his ejection fraction was 55 to 60 percent between December 2014 and March 2015; and 50 to 60 percent in March and June 2015.  Such was 50 percent in May 2017.
Finally, the only notation indicative of congestive heart failure at any time during the appeal period is a July 2018 cardiology pre-procedure note, which states that congestive heart failure was a comorbid condition.  Even assuming arguendo that such was a diagnosis of congestive heart failure, the Board observes that there is no indication that the Veteran experiences chronic congestive heart failure, as contemplated by the 100 percent rating criteria.  Rather, the rating criteria for DCs 7005 and 7017 both indicate that more than one episode of acute congestive heart failure in the past year warrants a 60 percent rating, the current rating in effect since August 1, 2014. 
The Board has considered a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  However, absent any indication or allegation that the appellant is unemployable as a result of his service-connected coronary artery disease, consideration of a TDIU is not warranted.  Thus, the record does not reasonably raise the issue of TDIU.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).
In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
 
MARTIN B. PETERS
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Behlen, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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