Citation Nr: 1031390 Decision Date: 08/20/10 Archive Date: 08/24/10 DOCKET NO. 07-25 677 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an initial rating in excess of 60 percent for coronary artery disease. 3. Entitlement to an initial rating in excess of 10 percent for hypothyroidism. ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1985 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Board notes that only the issue of entitlement to a TDIU was certified for appeal. However, in March 2005, the Veteran filed a timely notice of disagreement (NOD) as to the initial ratings that were assigned for coronary artery disease and hypothyroidism in a January 2005 rating decision. See 38 C.F.R. §§ 20.201, 20.302 (2009). The RO issued another rating decision in June 2006 denying an increased rating for coronary artery disease. However, as the Veteran filed a timely NOD, a statement of the case (SOC) must be issued as to these two issues. As such, the Board has no discretion and the case must be remanded for such purpose. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Additionally, the Board notes that the Veteran has claimed that he is unable to perform the mental requirements for employment due to his service-connected disabilities, and that he has been treated for depression, which he has subjectively related to his heart disability and hypothyroidism. See, e.g., statements from Veteran dated in April 2005 and July 2006; VA treatment records dated in January 2006 and January 2007. As such, the Board finds that a service connection claim for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, has been raised by the record. The Veteran was afforded a VA examination pertaining to mental health symptoms and their effect on his employability, but the issue of service connection has not been addressed. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, has been raised by the record but has not been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board has no jurisdiction, and this issue is referred to the AOJ for appropriate action. The issues of entitlement to (1) an initial rating in excess of 60 percent for coronary artery disease, and (2) an initial rating in excess of 10 percent for hypothyroidism are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any further action is required on his part. FINDINGS OF FACT 1. Service connection is in effect for coronary artery disease rated as 60 percent disabling, left shoulder disability rated 20 percent disabling, and hypothyroidism rated 10 percent disabling; as well as a left knee disability, sinusitis, hypertension, Hodgkin's disease (in remission), a scar on the right neck, and herpes zoster on the right face, all rated noncompensably disabling; with an overall combined disability rating of 70 percent. 2. Resolving all reasonable doubt in the Veteran's favor, he is unemployable for VA purposes due solely to his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision herein to grant a TDIU constitutes a full grant of the benefit sought on appeal, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 and implementing regulations. A total disability rating may be granted where the schedular rating is less than 100 percent if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, the following percentage thresholds must be met: if there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, if these threshold criteria are not met, but the evidence reflects that a veteran is unemployable by reason of service-connected disabilities, the case must be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration of a TDIU. 38 C.F.R. § 4.16(b). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, service connection is in effect for coronary artery disease rated 60 percent disabling, a left shoulder disability rated 20 percent disabling, and hypothyroidism rated 10 percent disabling; as well as a left knee disability, sinusitis, hypertension, Hodgkin's disease (in remission), a scar on the right neck, and herpes zoster on the right face, all rated as noncompensably disabling; with an overall combined disability rating of 70 percent. As such, he meets the threshold criteria for a TDIU under 38 C.F.R. § 4.16(a). The remaining question is whether he is unemployable solely due to his service-connected disabilities. In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). To warrant a TDIU, the record must reflect some factor which takes the veteran's case outside the norm of his or her service-connected disabilities. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In this regard, the Veteran asserts that he is unemployable primarily due to his service-connected coronary artery disease. He states that he has not worked since March 2005, and he is unable to maintain any substantial employment because he is physically and mentally unable to perform tasks due to his heart not functioning fully. See, e.g., July 2006 statement. The Veteran's wife further asserts that he is unemployable due to his heart disability, as well as the stress caused by such condition. See August 2006 statement. The lay and medical evidence of record is generally consistent with respect to the symptoms of the Veteran's heart disability throughout the appeal. In particular, he has daily chest pain that is aggravated by physical activity, cold weather, and stress; difficulty breathing after any exertion or physical activity, fatigue, weakness, dizziness several times per day especially after standing up quickly, and light-headedness. The Veteran also has easy bruising due to blood thinning medications, but no side effects from other medications to control his blood pressure, heart rate, fluid retention, cardiomegaly, and cholesterol. See, e.g., April 2005 letter from Veteran; August 2006 statement from Veteran's wife; June 2005 and January 2006 SSA disability examination reports; private treatment records dated in January and April 2006; VA treatment records dated in December 2005 and July 2007; VA examination reports dated in May 2006, April 2009, and April 2010. At a March 2010 mental health VA examination, the Veteran stated that his heart condition "absolutely, dramatically" impacted his life starting in 2003, stating that he has 12 stents and he doesn't know if one of them will collapse. Although the Veteran has reported symptoms of stress, depression, moodiness, forgetfulness, difficulty sleeping, and difficulty concentrating, which he believes are related to his heart disability, service connection is not in effect for a mental health disability. The Veteran has been receiving SSA disability benefits effective since March 2005 based on a primary diagnosis of coronary artery disease and a secondary diagnosis of Hodgkin's disease. During SSA proceedings, the Veteran stated that he is unable to work due to coronary artery disease, hypothyroidism, and depression, with symptoms as summarized above. He reported past employment as a utilities man or laborer with air conditioning and refrigeration during service, and a laborer at a golf course from September 2004 through March 2005. He has also reported working in construction during service. See, e.g., January 2006 TDIU form. The Veteran voluntarily resigned from his most recent position at the golf course, citing an inability to perform his duties due to his health. He has a high school degree and military vocational training for heating and air conditioning maintenance. The Veteran has reported being able to do activities of daily living, including some hobbies and household chores, but he does not do any strenuous work or carry anything heavy. He is able to cook, tend to a small garden, work with wood, clean the pool, cut the grass mainly with a riding lawnmower, paint, go to the grocery store, and watch television. Although the Veteran reported difficulty driving due to dizziness, light-headedness, and fatigue during SSA proceedings in 2005, he stated in April 2010 that he is able to drive a motorcycle. The Veteran denies any recreational activities except for occasional fishing, and he does not exercise other than walks in the yard. He has stated that he does not sleep well and his wife snores, so he wakes up late. See April 2009 and April 2010 VA examination reports. With respect to the severity of the Veteran's heart disability, he has been diagnosed with advanced or severe coronary artery disease status post coronary angioplasty and multiple stent placements. The last stent was placed in April 2006. He has been diagnosed with left ventricular hypertrophy and left atrial enlargement, as well as mild tricuspid valve regurgitation, mild to moderate aortic valve stenosis, and mild to moderate mitral valve regurgitation. See, e.g., May 2005 VA treatment record; June 2005 and January 2006 SSA disability examination reports; March 2006 SSA medical consultant review; August 2006 Keesler AFB treatment record; July 2007 VA treatment record; VA examination reports dated in May 2006, April 2009, and April 2010. A January 2006 nuclear viability imaging study showed extensive, moderate fibrosis of the entire inferior wall, with no significant viability in these segments, but significant viability in all other myocardial segments. Records dated in March 2005 and April 2006 reflect a diagnosis of cardiomyopathy. There is also some evidence of congestive heart failure. See January 2006 SSA disability examination report, March 2009 VA treatment record; but cf. April 2009 VA examination report, April 2010 VA examination report. Additionally, the evidence generally reflects estimated METs of 3-4 and an estimated ejection fraction of approximately 30 to 50 percent. Although an April 2006 private treatment record reflects an ejection fraction of 25 to 30 percent, records dated in January and August 2006 reflect an ejection fraction of 30 to 40 percent. The Veteran's hypertension was found to be controlled by medications in a May 2005 VA treatment record. At the April 2009 VA examination, the Veteran reported that his blood pressure is always low, but his current medications helped with symptoms such as dizziness and light-headedness. He was noted to have no complications other than coronary artery disease. The Veteran's blood pressure readings were low at the April 2010 VA examination, but the examiner noted that there was a normal response to standing due to posture changes. Based on a review of the entire claims file, including the Veteran's reported symptoms and objective medical evidence as summarized above, the April 2010 VA examiner diagnosed coronary artery disease with mild functional limitation. This examiner further opined that the Veteran should be able to do sedentary, non-strenuous work if he decides to resume employment. The Veteran's other service-connected disabilities were evaluated at the April 2009 VA examination, at which time the Veteran generally reported no changes or treatment since an examination in November 2004. Specifically, he reported left shoulder pain with and some limitation of motion with occasional flare-ups due to changing weather and lying on his side. Functional limitations were primarily difficulty lifting and reaching up, and occasional difficulty driving, tying shoes, and doing woodwork. Left knee symptoms were occasional pain and soreness while walking, with no required assistive devices and no significant functional limitations. The Veteran's Hodgkin's disease was noted to be in continued remission, with symptoms of easy bleeding when cut, as well as occasional coldness in the extremities and swelling. There were no current symptoms or functional limitations due to the right neck scar or herpes zoster on the right face. The Veteran's sinusitis was manifested by watery, itching eyes and episodes of sneezing 10 to 15 times at a time year-round, treated with a nasal inhaler and antihistamine. This condition was noted to be unchanged, and there is no indication of any effect on his employability. The Veteran subjectively reported symptoms related to his hypothyroidism at the April 2009 VA examination, which was being treated with medication. However, the examiner stated that the Veteran's TSH was normal and he was in a euthyroid state. The Board notes that a May 2005 VA treatment record also reflects that the Veteran's hypothyroidism was in a clinically euthyroid state with medication. The VA examiner opined that the Veteran's subjective complaints of fatigue, weakness, generalized soreness, mental sluggishness, memory loss, and depression are less likely as not result of hypothyroidism. He further stated that the Veteran's symptom of bruising easily was at least as likely as not related to his blood thinner medications. With respect to fatigue, weakness, and generalized soreness, the examiner noted that the Veteran has a cardiac problem, deconditioning, and an irregular sleep pattern and reported that he cannot sleep as his wife snores. Based on the foregoing lay and medical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that he is entitled to a TDIU. Specifically, the evidence reflects that the Veteran is severely limited in his activities due to his coronary artery disease, and he has frequent symptoms such as chest pain, shortness of breath, and dizziness that occur with little or no exertion. Further, he has been granted SSA disability benefits based primarily on his coronary artery disease. While the SSA's determination as to the Veteran's ability to work is not binding on the Board, it is highly probative. The Board acknowledges that the April 2010 VA heart examiner opined that the Veteran retains the ability to perform sedentary work. However, the Veteran's previous employment was in construction, heating and air conditioning maintenance, and as a general laborer, all of which required some degree of physical exertion. Although the Veteran has a high school degree, there is no indication that he has any additional training or skills that would lend themselves to sedentary employment. Further, the Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). As such, applying the benefit of the doubt rule, the Board finds that the Veteran is unemployable for VA purposes solely due to his service-connected disabilities, and primarily his coronary artery disease. In summary, the Veteran meets the percentage threshold criteria for a TDIU, and the evidence demonstrates that he is unable to secure and follow a substantially gainful occupation due solely to his service-connected disabilities, including but not limited to coronary artery disease. Accordingly, he is entitled to a TDIU. ORDER A TDIU is granted. REMAND As noted above, the Veteran filed a timely NOD as to the initial ratings that were assigned for coronary artery disease and hypothyroidism in a January 2005 rating decision. See 38 C.F.R. §§ 20.201, 20.302. Although the RO issued another rating decision in June 2006 denying an increased rating for coronary artery disease, a SOC has not been issued as to either of these issues. Therefore, the Board has no discretion and the case must be remanded for this purpose. See Manlincon, 12 Vet. App. at 240. However, these issues will be returned to the Board after issuance of the SOC only if the Veteran files a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Provide the Veteran with a Statement of the Case on the issues of entitlement to an initial rating in excess of 60 percent for coronary artery disease, and an initial rating in excess of 10 percent for hypothyroidism. See Manlincon, 12 Vet. App. at 240; 38 C.F.R. §§ 19.29-19.30. The Veteran should be advised that a substantive appeal has not been received concerning either of these issues, and of the requirements for an adequate and timely substantive appeal. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b). Thereafter, if a timely substantive appeal is received, and subject to then applicable appellate procedures, the case should be returned to the Board for further appellate consideration of one or both of these issues. See Smallwood, 10 Vet. App. at 97. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ M.W. KREINDLER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs