Decision A26040953

Citation Nr: A26040953
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250618-557074
DATE: April 30, 2026

ORDER

Entitlement to a disability rating of 100 percent for a heart disability from September 12, 2022 to August 18, 2023, is granted.

Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) from September 12, 2022 to August 18, 2023 is granted.

Eligibility for Dependents' Educational Assistance under 38 USC chapter 35 is from September 12, 2022 to August 18, 2023, has been established. 

FINDINGS OF FACT

1. From September 12, 2022 to August 18, 2023, the Veteran's heart disability has been manifested by a workload of 1 to 3 metabolic equivalents (METs) that results in heart failure symptoms.

2. From September 12, 2022 to August 18, 2023, the Veteran was in receipt of a 100 percent rating for his heart disability, and he had other service-connected disabilities separately rated above 60 percent.  

3. Eligibility for Dependents' Educational Assistance was factually ascertainable as of September 12, 2022.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a 100 percent disability rating for a heart disability from September 12, 2022 to August 18, 2023, have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7000. 

2. The criteria for SMC under 38 U.S.C. § 1114(s) from September 12, 2022 to August 18, 2023, have been met.  38 U.S.C. §§ 1114(s), 5103, 5107; 38 C.F.R. §§ 3.102, 3.350.

3. The criteria for eligibility to Dependents' Educational from September 12, 2022 to August 18, 2023, have been met.?38 U.S.C. §§ 3501, 5110, 5113;?38 C.F.R. §§ 3.400, 3.807, 21.3020, 21.3021. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the U.S. Navy from August 1999 to August 2004.

The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with Department of Veterans Affairs' (VA) decision on their claim to seek review.? The AMA became effective on February 19, 2019.?38?C.F.R. §?3.2400(a)(1).? The AMA applies to all?initial?decisions issued after February 19, 2019.?? 

The present matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2025 higher-level review (HLR) decision issued by VA Agency of Original Jurisdiction (AOJ).? Accordingly, this decision is subject to the AMA.

The Veteran's increased rating claim was denied in a December 2024 rating decision.  In April 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR).  In April 2025, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the December 2024 rating decision.  

Next, the Veteran timely appealed the HLR decision to the Board in a June 2025, VA Form 10182 Notice of Disagreement and requested the evidence submission lane of the decision by the AOJ. The Veteran requested the direct review docket, which limits the Board's review to evidence of record at the time of the rating decision on appeal.

The Board interprets the Veteran's selection of the Direct Review option with an indication of a decision being rendered within 365 days as well as statements of record as reflecting an intent to have this matter reviewed in an expeditious manner, thus, the Board will proceed to adjudicate the claim finding that the Veteran does not wish to change Board dockets under Williams v. McDonough, 37?Vet. App.?305 (2024).

I. Increased Rating 

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely
 of the decision by the AOJ. The Veteran requested the direct review docket, which limits the Board's review to evidence of record at the time of the rating decision on appeal.

The Board interprets the Veteran's selection of the Direct Review option with an indication of a decision being rendered within 365 days as well as statements of record as reflecting an intent to have this matter reviewed in an expeditious manner, thus, the Board will proceed to adjudicate the claim finding that the Veteran does not wish to change Board dockets under Williams v. McDonough, 37?Vet. App.?305 (2024).

I. Increased Rating 

Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).?38?U.S.C. §?1155;?38?C.F.R. §§?4.1, 4.2, 4.10.?? 

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1?Vet. App.?589 (1991).  The medical, as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38?C.F.R. §§?4.1, 4.2, 4.10. 

Where there is a question as to which of two evaluations shall be applied, 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.?See?38?C.F.R. §?4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor.?38?C.F.R. §?4.3.? Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.?Hart v. Mansfield, 21?Vet. App.?505.?? 

Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.?See?Francisco v. Brown,?7?Vet. App.?55, 58 (1994).? Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms?during the course of?the rating period on appeal, assignment of staged ratings would be permissible.? See?Hart v. Mansfield, 21?Vet. App.?505 (2007).?? 

Where there is a question as to which of two evaluations shall be applied, 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. § 4.71a.

A veteran can preserve an effective date by continuously pursuing a claim or issue. This is accomplished by timely filing in succession any of the available review lanes as specified in 38 C.F.R. § 3.2500 (c) within one year of the issuance of the decision (or the time period specified in § 3.2500(f), as applicable to simultaneously contested claims), provided that any appeal to the United States Court of Appeals for Veterans Claims must be accepted as timely by that court. 38 C.F.R. § 3.2500 (h)(1). 

1. Entitlement to an increase rating for a heart disability

Initially, the Board finds that the Veteran has continuously pursued his initial increased rating claim.  In December 2022, the AOJ awarded service connection for a heart disability and assigned a 10 percent rating effective September 12, 2022.  On August 18, 2023, the Veteran submitted a supplemental claim for an initial increased rating.  In November 2023, the AOJ awarded an increased rating of 100 percent effective August 18, 2023.  The Veteran appealed this decision in a February 2024 HLR request, and the AOJ denied the claim in December 2024.  In January 2025, the Veteran submitted another HLR request and the AOJ denied his claim in an April 2025 decision.  Next, the Veteran filed a timely appeal to the Board in June 2025.  

Because the Veteran filed a supplemental claim, request for higher-level review, and VA Form 10182 within one year of each adverse decision, the
, 2023, the Veteran submitted a supplemental claim for an initial increased rating.  In November 2023, the AOJ awarded an increased rating of 100 percent effective August 18, 2023.  The Veteran appealed this decision in a February 2024 HLR request, and the AOJ denied the claim in December 2024.  In January 2025, the Veteran submitted another HLR request and the AOJ denied his claim in an April 2025 decision.  Next, the Veteran filed a timely appeal to the Board in June 2025.  

Because the Veteran filed a supplemental claim, request for higher-level review, and VA Form 10182 within one year of each adverse decision, the Board finds that he has continuously pursued his September 12, 2022, claim.  Thus, the appeal period begins on September 12, 2022.  The Veteran is in receipt of a 10 percent disability rating for his heart disability from September 12, 2022 and a 100 percent rating from August 18, 2023, under Diagnostic Code 7000.  Because the Veteran is already in receipt of the schedular maximum rating of 100 percent from August 18, 2023, the Board will only address the period from September 12, 2022 to August 18, 2023.  

Diagnostic Code 7000 is rated under the General Rating Formula for Diseases of the Heart. A 10 percent rating is warranted for when testing shows workload of 7.1 to 10.0 METs results in heart failure symptoms; or continuous medication required for control.  A 30 percent rating is warranted when testing shows a workload of 5.1 to 7.0 METs results in heart failure symptoms; or evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging).  A 60 percent rating is warranted when testing shows a workload of 3.1 to 5.0 METs resulting in heart failure symptoms.  A 100 percent rating is warranted when testing shows a workload of 3.0 METs or less resulting in heart failure symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7000.

According to Note (2): 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.

According to Note (2): 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.

Factual Background

The Veteran was provided with a VA examination in October 2022 to assess the nature and severity of his heart disease.  The examiner noted that the Veteran was diagnosed with congestive heart failure, valvular heart disease, cardiomyopathy, and premature ventricular contractions.  The examiner noted current symptoms of shortness of breath, dyspnea, and intermittent left lower extremity edema.   The examiner further noted that the Veteran treated his conditions with medication and compression stockings.  The examiner indicated that the Veteran's heart disability has remained the same since onset. 

The examiner noted that echocardiograms performed in December 2020 and July 2021 showed an ejection fraction of 35 to 40 percent.  The examiner further noted that an echocardiogram performed in October 2022 showed septal wall motion abnormality consistent with inter-ventricular conduction defect, moderate global hypokinesis of the left ventricle, moderate to severely dilated left atrium, and ejection fraction of 35 to 40 percent. Additionally, the examiner noted an electrocardiogram performed in July 2021 showed sinus rhythm, multiform
 the Veteran treated his conditions with medication and compression stockings.  The examiner indicated that the Veteran's heart disability has remained the same since onset. 

The examiner noted that echocardiograms performed in December 2020 and July 2021 showed an ejection fraction of 35 to 40 percent.  The examiner further noted that an echocardiogram performed in October 2022 showed septal wall motion abnormality consistent with inter-ventricular conduction defect, moderate global hypokinesis of the left ventricle, moderate to severely dilated left atrium, and ejection fraction of 35 to 40 percent. Additionally, the examiner noted an electrocardiogram performed in July 2021 showed sinus rhythm, multiform ventricular premature complexes, borderline right axis deviation, and borderline repolarization abnormality.  

The examiner performed an interview-based METs test, noting that exercise stress testing is not required as part of the Veteran's current treatment and the test is not without significant risk.  The examiner concluded that the Veteran has an METs level greater than 7 to 10 due to breathlessness, fatigue, dizziness, and syncope.  The examiner noted that stress testing had not been performed and the METs level provided is due solely to the Veteran's heart condition.  The examiner further concluded that the Veteran's heart condition causes difficulty performing occupational tasks such as prolonged walking, running, and carrying heavy objects.    

The Veteran was provided with another VA examination in November 2023 to assess the nature and severity of his heart disease.  The examiner noted that the Veteran was diagnosed with congestive heart failure with cardiomyopathy and premature ventricular contractions. The Veteran reported current symptoms of fatigue and difficulty with focus and concentration. He also complained of shortness of breath with activity and lightheadedness.  The examiner indicated that the Veteran's heart disability has remained the same since onset.

The examiner noted the diagnostic testing from 2021 and indicated that the Veteran's condition has stayed the same.  The examiner also noted that an echocardiogram performed in October 2023 showed cardiac hypertrophy, global hypokinesis of the left ventricle with minor regional variation, abnormal left ventricular wall thickness, and an ejection fraction of 25 to 30 percent. 

The examiner performed an interview-based METs test, noting that exercise stress testing is not required as part of the Veteran's current treatment and the test is not without significant risk.  The examiner concluded that the Veteran has an METs level 1 to 3 due to breathlessness, fatigue, and dizziness.  The examiner noted that stress testing had not been performed and the METs level provided is due solely to the Veteran's heart condition.  The examiner further concluded that the Veteran's heart condition causes difficulty performing occupational tasks due to limits with walking, focus, concentration, stamina, and bending down. 

Analysis

Based on the foregoing, the Board finds that a 100 percent rating is warranted from September 12, 2022 to August 18, 2023.  

In reaching this conclusion, the Board notes that the October 2022 VA examiner concluded that the Veteran's heart disability was less severe.  This examiner provided an interview-based METs level of greater than 7 to 10.  However, another VA examiner provided an interview-based METs level of 1 to 3 in November 2023.  

It is noteworthy that both examiners attributed the Veteran's limitations to breathlessness, fatigue, and dizziness.  However, the October 2022 VA examiner concluded that the Veteran's limitations could also be attributed to syncope.  Furthermore, both VA examiners concluded that the Veteran's heart disability has remained at the same level of severity since onset.  

Both VA examiners agreed as to severity since onset and overall symptoms causing limitation, yet they arrived at entirely different conclusions.  Therefore, the Board finds that there is at least an approximate balance of positive and negative evidence as to whether the Veteran's cardiac symptoms more nearly approximated the criteria for a disability rating of 100 percent for the period from September 12, 2022 to August 18, 2023.  As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to an initial a 100 percent disability rating is granted from September 12, 2022 to August 18, 2023.  

II. SMC  

Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate if a Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems;
 August 18, 2023.  As the reasonable doubt created by this approximate balance in the evidence must be resolved in favor of the Veteran, entitlement to an initial a 100 percent disability rating is granted from September 12, 2022 to August 18, 2023.  

II. SMC  

Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate if a Veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s). 

The Veteran is in receipt of SMC pursuant to 38 U.S.C. 1114 § 1114(s) from August 18, 2023, and the evidence demonstrates that he satisfies the criteria for the period from September 12, 2022 to August 18, 2023.  During this period, the Veteran was in receipt of a 100 percent rating for his heart disability, and he had additional service-connected disabilities independently rated above 60 percent.  Thus, SMC pursuant to 38 U.S.C. § 1114(s) is granted for the period from September 12, 2022 to August 18, 2023.  

IV. Dependents' Education Assistance 

Pursuant to 38 C.F.R. § 3.155?(d)(2), "VA will adjudicate as part of [a] claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., entitlement to 38 U.S.C. Chapter 35?Dependents' Educational Assistance?benefits...). The claimant may, but need not, assert entitlement to ancillary benefits at the time the complete claim is filed."  In this case, the issue of entitlement to of eligibility for DEA benefits under 38 U.S.C. Chapter 35 arises from the award of a TDIU beginning on July 16, 2019. 

DEA benefits are payable to the child, spouse, or surviving spouse of a veteran if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability.?38 U.S.C. § 3510;?38 C.F.R. § 3.807?(a). 

P&T means permanent and total "disability," permanently and totally "disabled," or permanent and total "rating," when any of these terms are used in reference to a veteran with a service-connected disability rating determined by VA to be total for the purposes of VA disability compensation where the impairment is reasonably certain to continue throughout the life of the disabled veteran.?38 C.F.R. §?21.3021?(p). The term "effective date of the P&T rating" means the date from which VA considers that the veteran's P&T disability commenced for purposes of VA benefits, as determined by the initial rating decision.?38 C.F.R. § 21.3021?(q), (r). 

Based on the decision herein, eligibility has also been established from September 12, 2022.  As of this date, permanent and total disability is established based on the Veteran's 100 percent rating for his heart disability.  (38 C.F.R. §?3.807).  Basic eligibility for?Dependents' Educational Assistance?exists if a veteran was discharged from service under conditions other than dishonorable and has a permanent total service-connected disability. 

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The Board notes that the Veteran is in receipt of Dependents' Educational Assistance from August 18, 2023.  Accordingly, entitlement to?Dependents' Educational for the period from September 12, 2022 to August 18, 2023, is granted. 

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Beech, Tara M.

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. 


 receipt of Dependents' Educational Assistance from August 18, 2023.  Accordingly, entitlement to?Dependents' Educational for the period from September 12, 2022 to August 18, 2023, is granted. 

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Beech, Tara M.

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.