Citation Nr: 0003799 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-11 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a disability rating greater than 30 percent for coronary artery disease (CAD) with a history of hypertension prior to January 12, 1998. 2. Entitlement to a disability rating greater than 30 percent for CAD as of January 12, 1998. 3. Entitlement to a disability rating greater than 10 percent for hypertension as of January 12, 1998. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from April 1963 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The evidence of CAD with a history of hypertension prior to January 12, 1998, consists of a documented angina attack in October 1997 with an essentially normal exercise stress test and normal myocardial imaging and evidence that the veteran took regular medication for control of hypertension. There is no evidence showing a predominant diastolic pressure of 110 or more with definite symptoms. 3. The evidence of CAD as of January 12, 1998, shows that the veteran was capable of sedentary employment or light manual labor involving nothing more than five pounds. The veteran's testimony reflects subjective symptoms of dizziness, shortness of breath with short walks, angina, and an inability to lift. 4. Evidence of hypertension as of January 12, 1998, does not reveal a predominant diastolic pressure of 110 or more. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 30 percent for CAD with a history of hypertension prior to January 12, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.104, Diagnostic Code 7005 (1997). 2. The criteria for a 60 percent disability rating for CAD as of January 12, 1998, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.104, Diagnostic Code 7005 (1999); 38 C.F.R. § 4.104, Diagnostic Code 7005 (1997). 3. The criteria for a disability rating greater than 10 percent for hypertension as of January 12, 1998, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.104, Diagnostic Code 7101 (1999); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Where a disability has already been service connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well grounded claim. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background The RO established service connection for hypertension in an October 1986 rating decision. It awarded a 10 percent disability rating at that time. In an August 1995 rating action, the RO established service connection for CAD as causally related to the already service-connected hypertension. The RO recharacterized the disability as CAD with a history of hypertension and awarded a 30 percent disability rating. In November 1997, the veteran submitted a claim for an increased rating for cardiac disability. He included received medical records from Ethriraj G. Raj, M.D. and the Hurley Medical Center, as well as employment records. Records from Dr. Raj indicated that the veteran was diagnosed as having CAD in June 1995 and underwent coronary artery angioplasty in July 1995. Notes dated in February 1997 showed a blood pressure of 134/70. The veteran's medications included amlodipine, triamterene, and atenolol. He complained of sharp chest pain in the left parasternal region and constant discomfort across the lower sternal region. Diagnoses included atypical chest pain, possible reflux esophagitis, and costochondritis. Notes dated about one week later in February 1997 indicated that his symptoms had almost completely resolved with Prilosec. His blood pressure was 126/80. The impression was stable cardiac status. In October 1997, the veteran presented to Hurley Medical Center with complaints of chest pain for the previous few weeks. On examination, blood pressure was 130/70. Electrocardiogram (EKG) revealed normal sinus rhythm and evidence of left atrial enlargement. Cardiac enzymes were negative. Chest X- rays showed only mild cardiomegaly. The impression was unstable angina pectoris and possible chest wall discomfort. Dr. Raj advised the veteran to avoid exertion until after a stress test could be arranged. An exercise stress test was performed on an outpatient basis in October 1997. Blood pressure at rest was 160/92; blood pressure at peak exercise was 206/96. Total work was 10.1 metabolic equivalents (METs). The results revealed mild impairment of exercise capacity, no arrhythmias, and normal blood pressure response. It was notes that the exercise EKG was inconclusive due to low heart rate response. The myocardial imaging study was normal. Employment records showed that the veteran lost 13 workdays due to illness from January 1997 to April 1997. The veteran underwent a VA cardiology examination in April 1998. He complained of chest pain, headaches, and dizziness for many years. He also had dyspnea without exertion and frequent angina. He took nitroglycerin, Norvasc, aspirin, Atenolol and Naproxen. Examination revealed blood pressure of 158/96 and 156/92. There was no evidence of heart enlargement by X-ray or percussion, and no evidence of arrhythmia, thrills, murmurs, or congestive heart failure. EKG showed sinus bradycardia with left axis deviation. There was minimal voltage criteria for the left ventricular hypertrophy, which he indicated could be a normal variant. The diagnosis was mild to moderate hypertensive heart disease and anginal episodes. The examiner commented that there was "[q]uestionable hypertension affecting daily activities." He added that the veteran could do sedentary employment or light manual labor, nothing over five pounds. In a June 1998 rating decision, the RO denied the veteran's claim for an increased rating. The veteran timely appealed that decision. The veteran testified at a personal hearing in October 1998. He worked as a maintenance technician for mass transportation, which consisted of manual labor, usually sweeping and fueling the buses. He could not lift things anymore and could not walk more than 250 feet without getting out of breath. He did not climb stairs because he got dizzy. The veteran underwent cardiac catheterization two weeks before the hearing. He took nitroglycerin for angina attacks, which he had six or seven times a day. His symptoms had been stable. He lost between 30 and 50 days from work per year. His problems were getting worse. He was unable to lift things that his job required. However, co-workers helped him with the heavy work. He was out of breath 90 percent of the day, and he also tended to have angina attacks and dizziness. His diastolic blood pressure was 110 or more most of the time and went higher on exertion. He had been on blood pressure medication for a long time. The veteran related that he had problems breathing during the night. After the hearing, the veteran submitted records of the September 1998 cardiac catheterization performed by Dr. Raj. The records indicated that the procedure was initiated for evaluation of possible ischemic heart disease. Results showed normal left ventricular systolic function, mild increase in left ventricular and diastolic pressure indicating diastolic dysfunction, and one vessel CAD of mild to moderate severity involving the distal circumflex coronary artery. The veteran was afforded another VA cardiology examination in December 1998. He reported having constant chest pain that worsened with exertion, such as bending and lifting. He denied nocturnal shortness of breath, wheezing, or intermittent claudication. Medications included Lotrel, Toprol XL, nitroglycerine, and Ecotrin. He continued to work as a maintenance technician. He related that chest pain interfered with work-related activities and that he missed 19 or 20 days of work in the last year. Examination revealed blood pressure of 160/90 in all positions. Physical examination was otherwise unremarkable. EKG showed sinus bradycardia, left axis deviation, moderate voltage criteria for left ventricular hypertrophy, maybe a normal variant. A cardiac angiogram from September 1998 revealed normal left ventricle size, ejection fraction of 60 percent, normal left ventricular systolic function, negative mitral regurgitation, and normal left main coronary artery and left anterior descending artery. Results of a January 1999 (sic) stress test showed fair exercise tolerance with normal hemodynamic response to exercise at 7 METs. There was no clinical or EKG evidence suggesting ischemia. The diagnosis was hypertension with suboptimal control of systolic blood pressure, CAD status post single vessel angioplasty with negative stress test at 7 METs, status post aorto-femoral bypass in 1994 currently asymptomatic, and mild hypercholesterolemia. In a May 1999 rating decision, the RO established separate disability evaluations for the CAD and the hypertension from January 12, 1998. The CAD rating was continued at 30 percent. The RO assigned a 10 percent disability rating for hypertension. The veteran testified before a member of the Board in October 1999. After his most recent cardiac catheterization, his doctor increased his heart medication and put him on water pills to keep his blood flowing. He still worked as a maintenance technician cleaning and servicing city buses. He had to clean and do a lot of bending, which caused dizziness when he stood up. He was able to walk less than half the length of a football field. The veteran testified that he lost 30 to 40 days from work per year. He still took nitroglycerine every day, as well as a pain pill twice a week. He currently took six types of medications. The veteran checked his own blood pressure, for which he was on medication. He was able to lift up to 25 pounds and feel comfortable. He felt dizzy or lightheaded about two or three times a day. He had not actually passed out. The veteran checked his blood pressure every day. The bottom number was usually over 110. Every three or four months, his blood pressure was much higher. The veteran saw Dr. Raj about three weeks before the hearing. He increased the veteran's heart medication. The veteran thought his blood pressure the day before the hearing was 172/89. He indicated that previous readings were about the same. Once or twice a month the bottom number went over 100. In general, the veteran's complaints included dizziness, shortness of breath, lots of angina, and a lot of severe headaches. Thereafter, the veteran submitted additional evidence for consideration, including a letter indicating that he had been declined life insurance coverage based on his reported medical history. In addition, the veteran submitted prescription information for triamterene with hydrochlorothiazide, which is a diuretic, and for metoprolol, which is used to treat hypertension and angina. Analysis Disability ratings are determined by applying the criteria set forth in the 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.A. § 1155; 38 C.F.R. § 4.1. Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. 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. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). During the pendency of the veteran's appeal, VA promulgated new regulations amending the criteria for rating cardiovascular disorders, effective January 12, 1998. See 62 Fed. Reg. 65,207 (1997) (codified at 38 C.F.R. pt. 4). Generally, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded, notwithstanding Karnas. Rhodan v. West, 12 Vet. App. 55, 57 (1998). Therefore, prior to January 12, 1998, only the previous version of the applicable rating criteria may be applied. As of January 12, 1998, the Board must apply whichever version of the rating criteria is more favorable to the veteran. As discussed above, the RO initially rated CAD and hypertension as a single disability. Effective January 12, 1998, the effective date of the amended regulations, it assigned separate evaluations. Therefore, the Board must address the claim as separate issues concerning the ratings in effect before and after the amendment dates. 1. CAD with a History of Hypertension prior to January 12, 1998 The RO received the veteran's claim for an increased rating in November 1997. At that time and until January 12, 1998, the RO characterized veteran's cardiac disorder as CAD with a history of hypertension and evaluated it as 30 percent disabling under Diagnostic Code (Code) 7005, arteriosclerotic heart disease. 38 C.F.R. § 4.104. Under Code 7005, the minimum schedular rating, 30 percent, is awarded for CAD following typical coronary occlusion or thrombosis, or with history of substantiated anginal attack, when ordinary manual labor is feasible. A 60 percent rating is in order following typical history of acute coronary occlusion or thrombosis, or with history of substantiated repeated anginal attacks, when more than light manual labor is precluded. A 100 percent schedular rating is warranted during and for six month following acute illness from coronary occlusion or thrombosis, with circular shock, etc., and after six months when there are chronic residual findings of congestive heart failure or angina on moderate exertion or when more than sedentary employment is precluded. 38 C.F.R. § 4.104, Code 7005 (1997). Hypertension is evaluated under Code 7101. 38 C.F.R. § 4.104. A 10 percent rating is warranted when diastolic pressure is predominantly 100 or more. A 20 percent evaluation is assigned when diastolic pressure is 110 or more with definite symptoms. Note 2 to Code 7101 indicates that when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a minimum 10 percent rating will be assigned. 38 C.F.R. § 4.104, Code 7101 (1997). The pertinent evidence of record shows complaints of chest pain in February 1997 that were relieved with Prilosec. The veteran's cardiac status was stable. In October 1997, the veteran was diagnosed as having unstable angina pectoris with an essentially normal exercise stress test and myocardial imaging. The evidence does not show that the veteran was precluded from performing ordinary manual labor. Based on the diagnosis of angina, the Board finds that the criteria for a 30 percent rating are met. However, lacking any substantiated history of angina attacks within the pertinent time frame or other evidence of disability, the Board does not find that the overall disability picture more nearly approximates the criteria for a 60 percent rating under Code 7005. 38 C.F.R. § 4.7. With respect to the veteran's hypertension, evidence prior to January 12, 1998 fails to show any recorded diastolic pressure above 100. However, the veteran does take several types of medication for control of hypertension, which establishes entitlement to a 10 percent rating only under Code 7101. Accordingly, the Board first finds that the disability is most appropriately rated under Code 7005, which provides the most advantageous rating. In addition, the Board finds that the evidence supports entitlement to no more than a 30 percent disability rating for CAD with a history of hypertension prior to January 12, 1998. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Code 7005 (1997). 2. CAD as of January 12, 1998 As of January 12, 1998, the RO evaluated the veteran's CAD separately as 30 percent disabling under Code 7005. 38 C.F.R. § 4.104 (1999). Note 2 to the amended 38 C.F.R. § 4.104 explains that one MET, or metabolic equivalent, 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. Under the amended regulations, a 30 percent rating is assigned with documented CAD resulting in a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is awarded with documented CAD resulting in more than one episode of acute congestive heart failure 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. Finally, a 100 percent schedular rating is warranted with documented CAD resulting in chronic congestive heart failure, or; 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. Initially, considering the evidence in light of each version of Code 7005, the Board finds that the previous version of the rating code is more favorable to the veteran. Karnas, 1 Vet. App. at 313. Specifically, clinical testing fails to reveal objective evidence of cardiac disability that satisfies the criteria for a 60 percent rating under the amended rating schedule. However, the April 1998 VA examiner indicates that the veteran was able to perform sedentary work or light manual labor, nothing over five pounds. In addition, the veteran testified at both the October 1998 and October 1999 hearings as to symptoms experienced with bending, lifting, or walking short distances. Thus, the Board finds that, under the previous version of Code 7005, the evidence is sufficient to establish entitlement to a 60 percent rating. 38 C.F.R. § 4.7. However, the Board also finds that the preponderance of the evidence is against entitlement to a 100 percent schedular rating, under either version of the rating schedule. Again, the objective clinical evidence fails to establish the level of disability required for a 100 percent evaluation under the amended Code 7005. Moreover, the evidence does not reveal that the veteran suffered acute illness from coronary occlusion or thrombosis, that he experiences chronic residuals of congestive heart failure or angina on moderate exertion, or that he is precluded from more than sedentary employment. Because the disability picture does not more nearly approximate the criteria required for a 100 percent schedular rating, the 60 percent evaluation must be assigned. 38 C.F.R. § 4.7. Finally, the Board finds that this particular case does not present such an exceptional or unusual disability picture such that referral for consideration of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) would be proper. Specifically, the evidence does not show frequent periods of hospitalization related to the CAD. In addition, although the veteran's employability is clearly impacted by the disability, there is no evidence to suggest that the regular rating schedule, which is premised on average impairment of earning capacity, does not satisfactorily compensate this veteran for his disability. In summary, the Board finds that the evidence supports entitlement to a 60 percent disability rating for CAD from January 12, 1998. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.7; 38 C.F.R. § 4.104, Code 7005 (1997). 3. Hypertension as of January 12, 1998 As of January 12, 1998, the RO assigned a separate disability rating for hypertension and awarded a 10 percent evaluation under Code 7101, hypertensive vascular disease. 38 C.F.R. § 4.104 (1999). Under the amended Code 7101, a 10 percent rating is assigned when diastolic pressure is predominantly 100 or more, or; when systolic pressure is predominantly 160 or more. In addition, 10 percent is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is in order when diastolic pressure is predominantly 110 or more, or; when systolic pressure is predominantly 200 or more. Note 1 to the amended Code 7101 specifies that hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater. First, the Board's comparison of the previous and amended versions of the rating criteria finds that neither version is more favorable to the veteran. In fact, the amendments effected minimal changes only, such that there was little substantive change to the rating schedule. Second, the Board finds that the preponderance of the evidence is against entitlement to a disability rating greater than 10 percent for hypertension. The rating criteria specify that the diastolic pressure must be predominantly above certain levels to qualify for stated ratings. Blood pressure recordings as of January 12, 1998 fail to show diastolic blood pressure of predominantly 110 or more. The veteran continues to take hypertensive medication. The Board acknowledges that during the October 1999 hearing, the veteran testified that his diastolic blood pressure was usually 110 or higher. However, later in the hearing, he stated that the diastolic pressure went over 100 only once or twice a month and went much higher every three or four months. Because the veteran's own testimony is contradictory, the Board is left to rely on objective evidence in medical records. As discussed above, the medical evidence does not show a disability picture that approximates the criteria for a 20 percent rating. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a disability rating greater than 10 percent for hypertension as of January 12, 1998. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Code 7101 (1999); 38 C.F.R. § 4.104, Code 7101 (1997). ORDER Entitlement to a disability rating greater than 30 percent for CAD with a history of hypertension prior to January 12, 1998 is denied. Subject to the laws and regulations governing the payment of monetary benefits, entitlement to a 60 percent disability rating for CAD as of January 12, 1998 is granted. Entitlement to a disability rating greater than 10 percent for hypertension as of January 12, 1998, is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals