**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

[No]{.smallcaps}. 01-1360

[Ramon Otero-Castro, Appellant]{.smallcaps},

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Argued August 20, 2002 Decided October 4, 2002 )

*Ronald L. Smith*, of Washington, D.C., for the appellant.

*William L. Puchnick*, with whom *Tim S. McClain*, General Counsel;
*Joan E. Moriarty*, Acting Assistant General Counsel; and *Michael A.
Leonard*, Deputy Assistant General Counsel, all of Washington, D.C.,
were on the brief, for the appellee.

Before KRAMER, *Chief Judge*, and STEINBERG and GREENE, *Judges.*

STEINBERG, *Judge*: The appellant, through counsel, seeks review of a
May 25, 2001, Board of Veterans\' Appeals (Board or BVA) decision that
denied a Department of Veterans Affairs (VA) increased rating (greater
than 30 %) for his service-connected hypertensive and arteriosclerotic
heart disease with unstable angina. Record (R.) at 1-7. The appellant
filed a brief asking that the Court reverse the Board decision and award
a 60% rating for his disability. The Secretary filed a brief seeking
affirmance of the BVA decision, and the appellant filed a reply brief.
This appeal is timely, and the Court has jurisdiction pursuant to
38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court
will reverse the Board\'s determination that the criteria for a 60%
rating for the veteran\'s service-connected disability have not been
met.

**I. Relevant Background**

The veteran served on active duty in the U.S. Army from July 1955 to
June 1957. R. at 10. In June 1970, he filed with a VA regional office
(RO) a claim for service connection for cardiomegaly (*see* R. at 77),
and in November 1970 the VARO granted that claim and assigned a
noncompensable rating (R. at 77). (Cardiomegaly is defined as
\"hypertrophy of the heart\". [Dorland\'s Illustrated Medical
Dictionary]{.smallcaps} 268 (28th ed. 1994) \[hereinafter
[Dorland\'s]{.smallcaps}\]. Hypertrophy is \"the enlargement or
overgrowth of an organ or part due to an increase in size of its
constituent cells\". *Id*. at 802.) In May 1973, the RO granted a 30%
rating, effective that month, for that disability and also denied
service connection for hypertensive vascular disease (R. at 92) (there
is no indication in the record on appeal (ROA) as to when the latter
claim was filed (*see* R. at 1‑717)). In January 1978, the Board, inter
alia, denied both a rating increase for the veteran\'s cardiomegaly and
service connection for hypertensive vascular disease. R. at 165-71. The
BVA again denied the same rating-increase claim in May 1987. R. at
252-55.

In April and June 1995, the veteran requested reevaluation of the rating
for his heart condition and asserted that that condition had worsened.
R. at 301, 319. In October 1995, Dr. Jose Cianchini conducted a VA
compensation and pension examination and diagnosed the veteran as having
\"\[h\]ypertensive cardiovascular disease with history of
cardiomegaly\". R. at 322. In June 1996, the RO continued the 30% rating
for the veteran\'s cardiomegaly. R. at 326-27. He then filed a timely
Notice of Disagreement (NOD) as to that RO decision. R. at 329. At a
hearing before a VA hearing officer (R. at 333-52) in October 1996, the
hearing officer noted that the RO had not yet issued a Statement of the
Case (SOC) in response to the veteran\'s NOD because new evidence had
been requested but had not yet been received by the RO. R. at 334.

Later in October 1996, the veteran filed a claim for service connection
for \"HB/P \[h\]ypertensive as secondary condition due to S.C.\". R. at
391. In December 1996, he underwent a VA heart examination, and the
examiner, Dr. Cianchini, made reference to the October 1995 examination
report and reiterated his prior diagnosis of \"\[h\]ypertensive
cardiovascular disease with cardiomegaly\". R. at 404-05. In May 1997,
the RO issued a decision denying, inter alia, what was, in effect, the
veteran\'s claim to reopen the previously disallowed claim for
hypertensive vascular disease. R. at 579.

In September 1997, the RO issued an SOC as to the denial of the
veteran\'s increased-rating claim for cardiomegaly. R. at 590-93. The
following month, the RO sent a letter to him advising as follows: \"The
correction on your claim has been done. Service connection for
hypertension condition is granted\[;\] the correct diagnosis of \[your\]
service\[-\]connected condition is hypertensive cardiovascular disease
with cardiomegaly.\" R. at 595. Enclosed with that letter was a copy of
an RO decision of the same date that stated: \"The evaluation of
service\[-\]connected cardiovascular condition is continued as 30
percent disabling\". R. at 596. The RO then specified that
\"\[h\]ypertensive cardiovascular disease with cardiomegaly
represent\[s\] one single disability and all service\[-\]connected
manifestations are rated as one disability.\" R. at 597.

In March 1998, the veteran requested a new evaluation of his disability.
R. at 609. Dr. Cianchini performed an examination on January 7, 1999,
ordered a \"MUGA test \[(multigated cardiac blood pool study)\] . . . to
evaluate \[the veteran\'s\] cardiac status at present\", and, after
reviewing electrocardiogram (EKG) results, diagnosed the veteran as
having \"\[h\]ypertensive cardiovascular disease with left-ventricular
hypertrophy\". R. at 623. The MUGA test results indicated that \"\[t\]he
contractile motion of the left ventricle is adequate with . . . an
ejection fraction of 50%\". R. at 624. The technician interpreting those
results (as countersigned by the verifying physician) noted that the
veteran had \"adequate left\[-\]ventricular function\" and that
\"\[his\] right\[‑\]ventricle contractility is mild\[ly\] to moderately
impaired\". *Ibid*. In a June 1999 decision, the RO denied a rating
increase for the veteran\'s disability. R. at 639-40. He filed an NOD in
July 1999 as to that decision (R. at 648) and was provided an additional
VA examination in June 2000 (R. at 684-86). The examining VA physician,
Dr. Edith Toro, noted that a procedure performed in April 2000 had
revealed \"a small fix perfusion defect on \[the\] distal anteroapical
wall of the left ventricle\" and stated that an EKG, performed the day
of the examination, had revealed sinus bradycardia and left‑ventricular
hypertrophy. R. at 686. Dr. Toro also reported that the January 1999
MUGA test had showed \"\[l\]eft ventricular contractivity is mild to
moderate \[sic\] impaired with ejection fraction of 50%\". *Ibid*. (It
is unclear whether, in so stating, Dr. Toro was reevaluating the 1999
MUGA test results and disagreeing with the prior finding of
right-ventricular-contractility impairment or whether she inadvertently
mischaracterized those results.) She listed the diagnosis as
\"\[h\]ypertensive and arteriosclerotic heart disease\" with
\"\[u\]nstable angina\". *Ibid*. The RO issued an SOC in July 2000
confirming its denial of an increased rating for the veteran\'s heart
condition. R. at 692-97. The veteran then timely appealed to the Board.
R. at 701.

In the BVA decision here on appeal, the Board concluded that the veteran
did not exhibit symptoms consistent with a 60% rating under either
Diagnostic Code (DC) 7005 or 7007, which refer, respectively, to
arteriosclerotic heart disease and hypertensive heart disease, *see*
38 C.F.R. § 4.104, DC 7005, 7007 (2001), (R. at 2) and thus denied a
rating greater than 30% for the veteran\'s hypertensive and
arteriosclerotic heart disease with unstable angina (R. at 7). In so
deciding, the Board found that the veteran did not, inter alia, \"have a
left\[-\]ventricular dysfunction with an ejection fraction of 30 to 50
percent.\" R. at 2. The Board specifically addressed Dr. Cianchini\'s
and Dr. Toro\'s respective findings of \"left\[-\]ventricular
hypertrophy\" and the ejection fraction of 50% that had been noted in
the January 1999 MUGA-test-results report. R. at 5. The Board also noted
the \"small fix perfusion defect\" of the veteran\'s left ventricle that
Dr. Toro had reported (R. at 686). R. at 5. After reviewing the evidence
of record, the Board concluded:

> \[W\]hile ***the veteran has mild left\[-\]ventricular impairment with
> an ejection fraction of 50 percent***, this is considered adequate
> left\[-\] ventricular function and there is no evidence of jugular
> venous distention. Additionally, the veteran experiences relief from
> his chest pain with rest and medication. Therefore, the Board finds
> that the veteran\'s current symptomatology most closely fits within
> the criteria for the presently assigned 30 percent evaluation.

R. at 6 (emphasis added).

**II. Contentions on Appeal and Oral Argument**

In his brief, the appellant argues that the Board decision should be
reversed because the Board committed legal error by \"reading additional
rating criteria\" into the applicable DCs. Brief (Br.) at 4. He asserts
that DCs 7005 and 7007, quoted in part III.A., below, which contain
identical requirements for a 60% rating, require that only one of three
listed criteria be met. Br. at 4. He notes that with regard to whether
the veteran had \"left\[-\]ventricular dysfunction with an ejection
fraction of 30 to 50 percent\", as required by DC 7005 and 7007, the
Board specifically determined that he had \"mild left\[-\]ventricular
impairment with an ejection fraction of 50 percent\" but then deemed his
left-ventricular function \"adequate\" (R. at 6) and denied a rating
increase. Br. at 8. The appellant contends that the Board deviated from
the regulation\'s objective criteria (Br. at 4) and that the \"rating
schedule does not grant the Board discretion to make its own
determination as to what level of heart dysfunction warrants a 60
percent rating\" (Br. at 8).

The appellant argues that the Board also erred by \"impos\[ing\]
extra\[\]schedular rating criteria\" when evaluating his disability. Br.
at 5. In support of this assertion, he contends that the Board
considered factors not listed in the rating criteria in the applicable
DCs, namely the absence of jugular venous distention and the fact that
the appellant experienced relief with rest and medication. Br. at 5. The
appellant maintains that the Court \"should . . . decide de novo whether
the Board\'s implicit interpretation of the rating criteria for a 60
percent rating\" under DCs 7005 and 7007 was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law. Br. at 7.

The Secretary disagrees; he asks the Court to review the Board\'s denial
of an increased rating under the \"clearly erroneous\" standard and
asserts that the Court should affirm the Board decision because there is
a plausible basis in the record for the Board\'s determination that a
rating increase was not warranted and that that determination is thus
not clearly erroneous. Br. at 5, 11. He contends that the Board
considered adequately all material evidence, including evidence that the
appellant considers to be related to factors outside the rating
criteria. Br. at 12. The Secretary further asserts that the appellant
\"simply overlooks the fact that *no medical professional* has equated
his left\[-\]ventricular hypertrophy with inadequate
left\[-\]ventricular function, a necessary component in the 60 percent
disability evaluation\". Br. at 12. Finally, the Secretary argues that
the Board decision contains a complete discussion of the notice and
duty-to-assist provisions enacted by the Veterans Claims Assistance Act
of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA) (as
codified at 38 U.S.C. §§ 5103, 5103A). Br. at 13. In his reply, the
appellant essentially reiterates the reversal arguments in his principal
brief. Reply at 2-5.

At oral argument before the Court, the parties disagreed as to whether
the phrase \"left\[‑\]ventricular dysfunction with an ejection fraction
of 30 to 50 percent\", as used in both DCs 7005 and 7007 as a
requirement for a 60% rating, establishes a subjective criterion, i.e.,
\"left\[‑\]ventricular dysfunction\", as well as an objective criterion,
i.e., \"an ejection fraction of 30 to 50 percent\". In addition to the
arguments briefed, the appellant contends that the term \"with\" as used
in the regulation has the meaning \"as evidenced by\" and that there
does not need to be a separate finding of dysfunction to qualify for a
60% rating, and the Secretary asserts that \"with\" means \"and\" and
that, therefore, in order to be eligible for a 60% rating a claimant
must have dysfunction in addition to an ejection fraction of 30% through
50%. The Secretary further asserts that the regulation does not contain
the phrase \"as evidenced by\" and that, under the appellant\'s theory,
the regulation could have been drafted without the term \"dysfunction\",
a term that must be given some meaning by virtue of its presence in the
regulation. The Secretary concedes that the appellant\'s documented
ejection fraction of 50% meets the objective criterion; he contends,
however, that the Board\'s finding of \"left\[‑\]ventricular
impairment\" (R. at 6) was not a finding of dysfunction and that the
increased rating was properly denied because the evidence does not
demonstrate a left-ventricular dysfunction. On the day of oral argument,
the appellant submitted to the Court notification of the existence of
two additional authorities -- namely, the medical definition (from
[Dorland\'s]{.smallcaps}) of \"ejection fraction\", set forth below, and
the publication of the proposed regulation (with commentary) that became
current DCs 7005 and 7007 -- that he argues support his position.

**III. Analysis**

***A.*** ***Applicable Diagnostic Codes***

DCs 7005 and 7007 each require the following symptomatology for a 30%
rating for arteriosclerotic heart disease and hypertensive heart
disease, respectively: \"Workload of greater than 5 METs \[(metabolic
equivalents)\] but not greater than 7 METs results in dyspnea, fatigue,
angina, dizziness, or syncope, or; \[sic\] evidence of cardiac
hypertrophy or dilatation on electrocardiogram, echocardiogram, or
X‑ray\". 38 C.F.R. § 4.104, DC 7005, 7007. The criteria for a 60% rating
in each DC are as follows: \"More than one episode of acute congestive
heart failure in the past year, or; \[sic\] workload of greater than 3
METs but not greater than 5 METs results in dyspnea, fatigue, angina,
dizziness, or syncope, or; \[sic\] ***left\[-\]ventricular dysfunction
with an ejection fraction of 30 to 50 percent***\". *Ibid*. (emphasis
added).

***B. Ambiguity in DCs 7005 and 7007***

We note at the outset of our analysis that the Secretary concedes that
the \"30 to 50 percent\" criterion in DCs 7005 and 7007 means 30%
***through*** 50%. Therefore, the veteran\'s ejection fraction of 50%
meets that objective criterion in both DCs; the Court accepts the
Secretary\'s reading of that language. Also, there is no dispute between
the parties that the veteran\'s left ventricle is impaired despite the
reference to the right ventricle in the initial interpretation of the
1999 MUGA test results (R. at 624). *Cf*. R. at 686 (Dr. Toro\'s report
of those results).

The basic principles that apply to construing statutes apply equally to
construing regulations. *See Smith (William A.) v. Brown*, 35 F.3d 1516,
1523 (Fed. Cir. 1994). \"\'The starting point in interpreting a statute
is its language.\'\" *Lee (Raymond) v. West*, 13 Vet.App. 388, 394
(2000) (quoting *Good Samaritan Hosp. v. Shalala*, 508 U.S. 402, 409
(1993)). \"In determining the plain meaning of statutory language,
\'legislative purpose is expressed by the ordinary meaning of the words
used.\'\" *Jones (McArthur) v. Brown*, 41 F.3d 634, 638 (Fed. Cir. 1994)
(quoting *Ardestani v. INS*, 502 U.S. 129, 136 (1991)). \"Each part or
section of a statute should be construed in connection with every other
part or section so as to produce a harmonious whole.\" *Talley v.
Derwinski*, 2 Vet.App. 282, 286 (1992) (internal quotation and citation
omitted); *see also Cottle v. Principi*, 14 Vet.App. 329, 334 (2001);
*Meeks v. West*, 12 Vet.App. 352, 354 (1999). This Court has previously
held:

> \[I\]t \[is\] fundamental that a section of a statute should not be
> read in isolation from the context of the whole act, and that in
> fulfilling our responsibility in interpreting legislation, \"we must
> not be guided by a single sentence or member of a sentence, but
> \[should\] look to the provisions of the whole law, and to its object
> and policy.\"

*Moreau v. Brown*, 9 Vet.App. 389, 396 (1996) (quoting *Richards v.
United States*, 369 U.S. 1, 11 (1962) (quoting *Mastro Plastics Corp. v.
NLRB*, 350 U.S. 270, 285 (1956))), *aff\'d*, 124 F.3d 228 (Fed. Cir.
1997). Where a statute is ambiguous, \"interpretive doubt is to be
resolved in the veteran\'s favor.\" *Brown v. Gardner*, 513 U.S. 115,
117 (1994); *see also Allen (Alfred) v. Brown*, 7 Vet.App. 439, 448
(1995) (en banc) (applying *Gardner* \"interpretive doubt\" principle to
rule in appellant\'s favor on question of statutory interpretation).

Applying the foregoing principles, the Court concludes that the language
in DCs 7005 and 7007 is ambiguous as to whether, in order to qualify for
a 60% rating by virtue of having \"left\[‑\]ventricular dysfunction with
an ejection fraction of 30 to 50 percent\", a claimant must demonstrate,
as the Secretary contends, that he or she has left-ventricular
dysfunction ***in addition to*** having an ejection fraction of 30%
through 50%. First, the meaning of the word \"with\" in the two DCs is
unclear. \"With\" is defined as, inter alia, \"as the result of\",
\"accompanied by, attended by, circumstanced by\", \"having as . . .
\[an\] attribute\", \"showing or exhibiting\", \"added to\", and
\"including\". [Webster\'s New World Dictionary 1534]{.smallcaps} (3d
College ed. 1988). These varied definitions appear to support both
parties\' interpretations of the term and of its function in the
applicable DCs. The [Dorland\'s]{.smallcaps} definition of \"ejection
fraction\", however, supports the appellant\'s construction of the word
\"with\" as the DCs use it: That definition specifies that a normal
ejection fraction is 65% (plus or minus 8%) and that \"***lower values
indicate ventricular dysfunction***\". [Dorland\'s]{.smallcaps} at 660
(emphasis added).

The commentary published with the proposed regulation in the Federal
Register does not make clear whether, for a 60% rating, the applicable
clause of the DCs contains only an objective criterion (a finding of
diminished ejection fraction within the specified range) or two criteria
(a subjective criterion -- a finding of dysfunction -- as well as the
objective one ). That commentary provides in pertinent part:

> Administering a treadmill exercise test \[in order to determine
> whether a claimant\'s condition satisfies the METs-based criterion\]
> may not be feasible in some instances, however, because of a medical
> contraindication . . . . We have, therefore, provided ***objective
> alternative evaluation criteria***, such as cardiac hypertrophy or
> dilatation, ***decreased left\[-\]ventricular ejection fraction***,
> and congestive heart failure for use in those cases. . . . The
> ***other objective criteria*** that we have added as alternatives to
> the METs-based criteria . . . are . . . a left\[-\]ventricular
> ejection fraction of 30 to 50 percent, or more than one episode of
> acute congestive heart failure in the past year for a 60-percent
> evaluation.

62 Fed. Reg. 65,207, 65,211 (Dec. 11, 1997) (emphasis added). The
appellant argues that the above commentary supports his argument that a
claimant, in order to qualify for a 60% rating, need demonstrate
left-ventricular dysfunction just by showing an ejection fraction of 30%
through 50%, because the commentary specifies that one alternative to
the METs-based criterion is \"decreased left\[‑\]ventricular ejection
fraction\", not dysfunction ***and*** decreased left-ventricular
ejection fraction. However, the METs-based criterion itself may be
comprised of objective and subjective elements -- the objective element
in terms of measurement of level of activity and the subjective element
in terms of the presence of symptoms of dyspnea, fatigue, angina,
dizziness, or syncope. *See* 38 C.F.R. § 4.104, DCs 7005, 7007
(providing for 60% rating where \"workload of greater than 3 METs but
not greater than 5 METs results in dyspnea, fatigue, angina, dizziness,
or syncope\"). Moreover, as the Secretary asserts, in promulgating the
regulation, VA specifically elected to use the term \"dysfunction\";
therefore, perhaps the commentary merely addresses \"other objective
criteria\", as an addition to dysfunction, that were added in that
revision of the regulation.

On the other hand, the overall purpose of the rating schedule appears to
be at odds with the Secretary\'s view that the applicable DC clause for
a 60% rating requires a showing of dysfunction in addition to an
abnormal ejection fraction. Section 1155 of title 38, U.S. Code,
provides in pertinent part: \"The Secretary shall adopt and apply a
schedule of ratings of reductions in earning capacity from specific
injuries or combination of injuries. The ratings shall be based, as far
as practicable, upon the average impairments of earning capacity
resulting from such injuries in civil occupations.\" 38 U.S.C. § 1155.
The definition of \"functional impairment\" in 38 C.F.R. § 4.10
specifies that \"\[t\]he basis of disability evaluations is the ability
of . . . \[an\] organ of the body to function under the ordinary
conditions of daily life including employment.\" 38 C.F.R. § 4.10
(2001). That regulation further provides that such \"evaluations are
based upon lack of usefulness\[\] of these parts or systems, especially
in self-support.\" *Ibid*. Thus, if an individual has been deemed
economically impaired and awarded a compensable rating, it follows that
he or she is functionally impaired in some way and already exhibits
organ or system \"dysfunction\". Given the rating schedule\'s purpose,
to compensate individuals for economic impairment, once a claimant has
met the impairment requirements for a compensable rating, for example,
30% as had the veteran here, it would not appear logical to include
\"dysfunction\" as an additional requirement for a higher rating.

In light of the ambiguity in the language of the regulation and because
interpretive doubt is to be resolved in favor of the claimant, *see
Gardner* and *Allen*, both *supra*, the Court holds that DCs 7005 and
7007 do not require, in order for a claimant to receive a 60% rating
based on \"left\[‑\]ventricular dysfunction with an ejection fraction of
30 to 50 percent\", a separate showing of left-ventricular dysfunction
in addition to an ejection fraction of 30% through 50%. The Court notes
that if the Secretary wishes to establish a DC containing two criteria
for a 60% rating, it is his obligation to do so clearly, not
ambiguously. When interpretive doubt is resolved in favor of the instant
appellant, the objective criterion is the sole criterion, and, as noted
previously, it is undisputed that he meets that criterion because his
ejection fraction was 50%.

Moreover, we hold alternatively that even if the applicable clause of
the DCs did, as the Secretary asserts, contain two criteria for a 60%
rating, the appellant still would be entitled to a 60% rating, because
the Board here specifically found that the evidence of record
demonstrated that \"the veteran has ***mild
left***\[-\]***ventricular*** ***impairment*** ***with an ejection
fraction of 50 percent***\". R. at 6 (emphasis added). Dysfunction is
defined as \"abnormal, ***impaired***, or incomplete functioning, as of
a body organ or part\". [Webster\'s New World Dictionary
424]{.smallcaps} (3d College ed. 1988) (emphasis added). Thus, once the
Board determined that the veteran had \"mild left\[-\]ventricular
***impairment*** with an ejection fraction of 50 percent\" (R. at 6)
(emphasis added), it could not then find that the veteran did not meet
the criteria (if there was more than the objective criterion) for a
higher rating. *See Thomas (Edgar) v. Principi*, 16 Vet.App. 197, 200
(2002) (citing *Bailey v. Derwinski*, 1 Vet.App. 441, 446 (1991), for
proposition that BVA decision cannot stand where \"inconsistent VA fact
finding was reached in \'arbitrary and capricious\' manner in violation
of 38 U.S.C. § 7261(a)(3)(A)\"). Accordingly, even if there was merit in
the Secretary\'s argument that the applicable clause of the DCs contains
two criteria, the argument would fail on the facts of this case because
the Board found that both criteria were met. In light of that fact, the
Board\'s consideration of factors outside the rating criteria (its
findings of no jugular venous distention and relief with rest and
medication) could not be a basis for denial of a 60% rating. *See Drosky
v. Brown*, 10 Vet.App. 251, 255 (1997) (holding Board\'s conclusions
legally erroneous where they were based on criteria outside applicable
DC); *Massey v. Brown*, 7 Vet.App. 204, 208 (1994) (citing *Pernorio v.
Derwinski*, 2 Vet.App. 625, 628 (1992), and concluding that \"Board\'s
consideration of factors which are wholly outside the rating criteria
provided by the regulations is error as a matter of law\").

The Court notes that, because of the nature of the remedy (reversal)
ordered herein, any issue regarding the VCAA is moot.

**IV. Conclusion**

Upon consideration of the foregoing analysis, the ROA, and the parties\'
pleadings, the Court reverses the May 25, 2001, BVA decision and remands
the matter to the Board with directions to assign an increased rating of
not less than 60%, with an effective date established in accordance with
applicable law and regulation.

REVERSED AND REMANDED.