HYPERTENSION

C. TRUEBA · 2022 · Case ID: 22046759

DENIED

Summary

The veteran, who served in the United States Army from July 1963 to March 1968 and again from June 1968 to October 1983, appeals the denial of an increased disability rating for hypertensive heart disease, status post pacemaker placement. The veteran sought a rating higher than the 60 percent he was already receiving, specifically aiming for a 100 percent rating. The Board reviewed extensive medical evidence, including VA and private examinations, echocardiograms, and treatment records, spanning from 2003 to 2020. These records indicated varying degrees of diastolic dysfunction, occasional dyspnea on exertion, fatigue, and dizziness, with ejection fractions generally ranging from 50 to 75 percent. However, the Board noted that the veteran's symptoms and exercise tolerance were often limited by non-cardiac factors like knee arthritis and CVA, and that his METs levels were frequently estimated based on his sedentary lifestyle rather than cardiac limitations. The Board concluded that under both pre- and post-November 14, 2021 rating criteria, the veteran did not meet the requirements for a 100 percent rating, as his hypertensive heart disease did not manifest with the severe heart failure symptoms or significantly reduced ejection fraction required. The evidence persuasively weighed against a 100 percent rating, rendering the benefit of the doubt doctrine inapplicable. Consequently, the appeal for an increased rating was denied.

Rationale

Evidence persuasively weighs against 100 percent rating.; Veteran's METs level limited by non-cardiac issues.; Ejection fraction generally within normal limits or higher than required for 100%.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

05-09 462

Full Decision Text

Citation Nr: 22046759
Decision Date: 08/17/22 Archive Date: 08/17/22

DOCKET NO. 05-09 462
DATE: August 17, 2022

ORDER

Entitlement to a disability rating in excess of 60 percent for hypertensive heart disease, status post placement of implanted cardiac pacemaker, prior to July 7, 2012, and then from October 1, 2012 forward, is denied.

FINDING OF FACT

The Veteran's hypertensive heart disease did not manifest in 3.0 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent, 3.0 METs or less resulting in heart failure symptoms.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent for hypertensive heart disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7007.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from July 1963 to March 1968, and then from June 1968 to October 1983.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran presented sworn testimony at a hearing before the undersigned in May 2010.

The Board remanded this matter in December 2016 and July 2020 for additional development. The Board finds that there has been substantial compliance with its remand directives and that the matters are now properly before the Board. See, Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Entitlement to a disability rating in excess of 60 percent for hypertensive heart disease, status post placement of implanted cardiac pacemaker, prior to July 7, 2012, and then from October 1, 2012 forward.

The Veteran contends that he is entitled to a higher disability rating for his hypertensive heart disease.

At all times relevant to this appeal, the Veteran's hypertensive heart disease has been rated at 60 percent under Diagnostic Code (DC) 7007. 38 C.F.R. § 4.104.

Prior to November 14, 2021, under 38 C.F.R. § 4.104, DC 7007, for hypertensive heart disease, a 10 percent rating is warranted where a workload of greater than 7.0 METs but not greater than 10.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is warranted where a workload of greater than 5.0 METs but not greater than 7.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3.0 METs but not greater than 5.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted where there is chronic congestive heart failure, or; a workload of 3.0 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.

Effective November 14, 2021, VA amended the rating criteria for hypertensive heart disease under 38 C.F.R. § 4.104, Diagnostic Code 7007. 86 Fed. Reg. 54089 (Sep. 30, 2021). This amended regulation applies to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after November 14, 2021. Claims pending prior to the effective date will be considered under both the pre- and post-amendment rating criteria, and whichever is more favorable to the Veteran will be applied. However, the Board may not apply the post-amendment rating criteria to a period prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Conversely, the Board is not precluded from applying the pre-amendment rating criteria to a period on or after the effective date of the post-amendment rating criteria so long as it was in effect during the pendency of the appeal.

Effective November 14, 2021, under 38 C.F.R. § 4.104, DC 7005, arteriosclerotic heart disease (coronary artery disease) is rated in accordance with the General Rating Formula for Diseases of the Heart. A 10 percent rating is warranted where a workload of 7.1-10.0 METs results in heart failure symptoms, or continuous medication is required for control. A 30 percent rating is warranted where a workload of 5.1-7.0 METs results in heart failure symptoms, or where there is cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging). A 60 percent rating is warranted where a workload of 3.1-5.0 METs results in heart failure symptoms. A 100 percent rating is warranted where a workload of 3.0 METs or less results in heart failure symptoms.

Under the post-amendment rating criteria, 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. 38 C.F.R. § 4.104, Note (2). When the level of METs at which breathlessness, 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 those symptoms may be used. Id.

For purposes of the General Rating Formula for Diseases of the Heart, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. 38 C.F.R. § 4.104, Note (3).

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. 38 C.F.R. § 4.104, 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. Id.

For the purposes of a 60 percent evaluation, the pre-amendment rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase "30 to 50 percent" means 30 percent through 50 percent. Id. at 380.

For the purposes of a 100 percent evaluation, the pre-amendment rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382.

The Board finds that at no time relevant to this appeal, under either the pre- or post-November 14, 2021 criteria, have the requirements for a
in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase "30 to 50 percent" means 30 percent through 50 percent. Id. at 380.

The Board finds that at no time relevant to this appeal, under either the pre- or post-November 14, 2021 criteria, have the requirements for a 100 percent disability rating been met.

The Veteran was afforded a VA heart examination in October 2003. The Veteran denied chest pain, dyspnea, shortness of breath, fatigue, dizziness, or syncope, but stated that he occasionally feels his heart is racing and has to lie flat on his back for 20 minutes for it to go away. He then reported occasional dyspnea on exertion if he climbs stairs. The Veteran asserted that his heart problem "is not really affecting his daily occupation or daily activities." It was noted that the Veteran had evidence of diastolic dysfunction on his echocardiogram that as likely as not could cause his occasional dyspnea on exertion. A normal ejection fraction rate of 50 to 55 percent was noted.

The Veteran was afforded a VA heart examination in March 2004. It was noted that the Veteran was having trouble getting his blood pressure under control. The Veteran reported good exercise tolerance and that he can walk several blocks and several flights of stairs without any shortness of breath. It was then noted that a March 2004 chest x-ray showed a tortuous aorta and that an October 2003 echocardiogram showed normal ejection fraction. Mild concentric left ventricular hypertrophy was noted, as was mildly dilated aortic root. However, minimal symptoms with good exercise capacity was noted.

An April 2004 VA treatment record notes the Veteran reported worsening dyspnea, but no chest pain or edema. An echocardiogram was noted as being within normal limits. Elevated blood pressure was noted.

A June 2004 VA treatment record notes the Veteran reported continuing shortness of breath on exertion.

A July 2005 private treatment record from Baton Rouge General notes the Veteran underwent left heart catheterization, selective coronary angiography and left ventriculogram for atypical angina and an abnormal stress perfusion study. Mild to moderate atherosclerotic coronary artery disease was noted, as was an ejection fraction of 50 to 55 percent.

The Veteran was afforded a VA heart examination in November 2006. It was noted that the Veteran had a history of one instance of syncope, constant fatigue, weekly angina, daily dizziness, and dyspnea on mild exertion. The Veteran's estimated METs were 3 to 4 and his ejection fraction was noted as greater than 50 percent.

A January 2008 private treatment record from Southeastern Cardiovascular Consultants notes the Veteran underwent a rest/stress myocardial perfusion with wall motion study. An electrocardiogram was noted as being within normal limits and the post stress ejection fraction was measured at 70 percent. Clinically and electrocardiographically negative Adenosine stress test was noted, as was norma myocardial SPECT following Adenosine stress test.

The Veteran was afforded a VA heart examination in May 2008. A history of no syncope, weekly fatigue, no angina, weekly dizziness, and dyspnea on moderate exertion was noted. Stress test METs were notes as 7.1 and an ejection fraction percentage of greater than 50 percent was noted.

A January 2010 private treatment record from Southeastern Cardiovascular Consultants notes the Veteran underwent a rest/stress myocardial perfusion with wall motion study. An electrocardiogram was noted as being within normal limits and the post stress ejection fraction was measured at 75 percent. Clinically and electrocardiographically negative Adenosine stress test was noted, as was norma myocardial SPECT following Adenosine stress test.

An April 2010 private treatment record from Dr. S. Kelly notes the Veteran reported being seen in the emergency department the prior evening for valuation of chest discomfort with mild shortness of breath. It was noted that an electrocardiogram showed no acute changes and his enzymes were negative. Angina was noted.

An October 25, 2011 private treatment record from Dr. S. Kelley notes the Veteran reported engaging in moderate
study. An electrocardiogram was noted as being within normal limits and the post stress ejection fraction was measured at 75 percent. Clinically and electrocardiographically negative Adenosine stress test was noted, as was norma myocardial SPECT following Adenosine stress test.

An October 25, 2011 private treatment record from Dr. S. Kelley notes the Veteran reported engaging in moderate amounts of physical activity at home, though it was "limited somewhat secondary to knee discomfort." He further reported dyspnea on exertion. Multifactorial dyspnea was noted.

A July 2012 private treatment record from Dr. S. Kelley notes the Veteran underwent pacemaker placement and had been having no chest pain or dyspnea, though he reported noticing his heart race once or twice.

The Veteran was afforded a VA heart conditions examination in October 2012. It was noted that the Veteran underwent cardiac catheterization in 2005 due to weakness and shortness of breath. It was further noted that in June 2012 he presented with shortness of breath and fatigue due to bradycardia and had a pacemaker placed, resulting in his feeling better. Continuous use of medication was noted, as was arrhythmia, atrioventricular block, III degree. A September 2012 echocardiogram revealed a left ventricular ejection fraction of 50 percent. Interview-based METs testing was estimated at 1 to 3 METs, with noted dyspnea. It was further noted that the Veteran's METs level was also affected by his CVA and knee arthritis. It was noted that his heart disease rendered him unable to walk short distances due to shortness of breath.

A September 2013 private treatment record from Dr. S. Kelley notes the Veteran reported having some shortness of breath with extreme exertion.

A September 2013 private treatment record form Southeastern Cardiovascular Consultants notes the Veteran underwent a transthoracic echocardiogram which revealed an ejection fraction of 45 to 50 percent.

The Veteran was afforded a VA heart examination in February 2014. Continuous treatment with medication was noted, as was cardiac arrhythmia, atrioventricular block, III degree. Cardiac pacemaker implantation in 2012 was noted. A February 2014 echocardiogram was noted as showing left ventricular ejection fraction of greater than 65 percent. Interview-based METs was estimated as 1 to 3 METs, with noted symptoms of dyspnea and fatigue. It was noted that the METs level was not solely due to the Veteran's heart condition but was due to multiple factors, including knee arthritis and CVA. The examiner noted that the Veteran's ejection fraction provides a better indicated of his heart status as hs METs is limited mostly by non-cardiac issues.

The Veteran was afforded a VA heart conditions examination in February 2017. Continuous use of medication was noted, as was cardiac arrythmia, atrioventricular block, III degree. Implantation of a pacemaker in 2012 was noted. It was noted that a February 2017 echocardiogram revealed a left ventricular ejection fraction of 50 to 55 percent. Interview-based METs testing was noted as 1 to 3, with noted symptoms of dyspnea and tightness in his left chest. It was noted that this METs level was not due solely to his cardiac condition, further noting that he walks slowly due to knee pain and right lower extremity weakness.

In a December 2018 addendum opinion, the VA examiner stated that he cannot offer an opinion as to the Veteran's METs level based solely on his cardiac condition without speculation, noting that the Veteran is sedentary and "quits doing any exertion due to knee pain before any other symptoms develop." The examiner then noted that the Veteran's echocardiogram is within normal limits and that he is "most likely deconditioned due to lack of any regular physical exertion."

The Veteran was afforded a VA heart conditions examination in November 2020. Diagnoses of coronary artery disease, stable angina, and hypertensive heart disease, status post placement of an implanted cardiac pacemaker, were noted. The Veteran reported symptoms of exhaustion, weakness, memory loss, and occasional chest pains. It was noted that continuous use of medication is required for control of the condition.
condition without speculation, noting that the Veteran is sedentary and "quits doing any exertion due to knee pain before any other symptoms develop." The examiner then noted that the Veteran's echocardiogram is within normal limits and that he is "most likely deconditioned due to lack of any regular physical exertion."

The Veteran was afforded a VA heart conditions examination in November 2020. Diagnoses of coronary artery disease, stable angina, and hypertensive heart disease, status post placement of an implanted cardiac pacemaker, were noted. The Veteran reported symptoms of exhaustion, weakness, memory loss, and occasional chest pains. It was noted that continuous use of medication is required for control of the condition. Congestive heart failure was not noted as being chronic or acute in the past year. It was noted that a cardiac pacemaker was implanted in 2010. Interview-based METs testing was found to be appropriate. Dyspnea and fatigue were reported and METs was estimated at greater than 3 to 5 and was said to be due solely to his heart condition. It was noted that a February 2017 echocardiogram revealed a left ventricular ejection fraction of 50 percent.

In light of the above, the Board finds that at no time relevant to this appeal has the Veteran's hypertensive heart disease, status post placement of implanted cardiac pacemaker been manifest by or more closely resembled 3.0 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent, 3.0 METs or less resulting in heart failure symptoms.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether a 100 percent rating for hypertensive heart disease, status post placement of implanted cardiac pacemaker is warranted. Rather, the evidence persuasively weighs against a 100 percent rating for hypertensive heart disease, status post placement of implanted cardiac pacemaker. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

C. TRUEBA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Keeley, Brian

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.

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