Citation Nr: 1138445 Decision Date: 10/14/11 Archive Date: 10/19/11 DOCKET NO. 07-09 985A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 60 percent for arteriosclerotic heart disease. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Esquire ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active military service from March 1974 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for arteriosclerotic heart disease assigned an initial rating of 10 percent effective from January 21, 2003. During the pendency of the appeal, the RO issued a rating decision in September 2006 in which the Veteran's evaluation was increased to 30 percent effective from January 21, 2003. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remained on appeal. In November 2008, the Board granted the Veteran an increased rating of 60 percent for arteriosclerotic heart disease effective January 21, 2003. The Veteran then appealed the Board's denial of a higher rating in excess of 60 percent to the Court of Appeals for Veterans Claims (Court), which, in August 2009, granted a Joint Motion for Remand (JMR) and vacated that portion of November 2008 Board decision. In March 2010 and November 2010, the Board remanded the issue on appeal for further development, specifically for the Veteran to be afforded a VA examination. The Veteran was afforded VA examinations in August 2010 and January 2011. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In March 2011 and July 2011, the Board granted the Veteran 90 day extensions in order to submit further evidence. However, in September 2011, the Veteran's representative waived the rest of his 90 day stay to submit evidence and submitted additional private medical evidence with a waiver of review by the Agency of Original Jurisdiction (AOJ). Therefore, the Board may proceed with a decision in this case. See 38 C.F.R. § 20.800. The issue of entitlement to TDIU is remanded to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The Veteran's arteriosclerotic heart disease is productive of chronic congestive heart failure. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial evaluation of 100 percent for atherosclerotic heart disease have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Nevertheless, the Veteran in this case is challenging the initial evaluation assigned following the grant of service connection for arteriosclerotic heart disease. In Dingess, the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service- connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. See also VAOPGCPREC 8-2003 (December 22, 2003). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify has been satisfied with respect to the issue of entitlement to a higher initial evaluation for arteriosclerotic heart disease. Moreover, the Board has granted the Veteran's claim in the decision below, and therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. II. Law and Analysis Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002). Evaluations of a service-connected disability require review of the entire medical history regarding the disability. 38 C.F.R. §§ 4.1, 4.2. If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. As noted above, the Veteran has been assigned a 60 percent disability evaluation effective from January 21, 2003, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. Under that diagnostic code, a 10 percent disability evaluation is assigned when a workload of greater than 7 METs, but not greater than 10 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required. A rating of 30 percent is warranted when a workload of greater than 5 METs, but not greater than 7 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent disability evaluation is warranted when there is more than one episode of acute congestive heart failure in the past year; a 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. A 100 percent rating is warranted when there is chronic congestive heart failure; a 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. If nonservice-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, a medical opinion should be requested as to which condition is causing the current signs and symptoms. Note to Diagnostic Code 7005. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a higher initial evaluation for arteriosclerotic heart disease. Private treatment records show that the Veteran had cardiomyopathy and congestive heart failure in April 1999. Correspondence dated in August 1999 from a private medical center also stated that the Veteran was unable to walk without getting short of breath, and the private physician opined that he was unable to work. Another private physician indicated in August 1999 that the Veteran had a history of hypertensive cardiomyopathy and single vessel coronary artery disease. The private physician further commented that the Veteran should avoid high levels of physical work or high stress and noted that it could not be predicted if sudden incapacitation would occur. He recommended that the Veteran be put on disability status. There is evidence showing that the Veteran was medically retired in October 1999 due to cardiomyopathy. A September 2001 private medical note indicated that the Veteran's left ventricle was enlarged, and the ejection fraction was 37 percent. On VA examination in July 2003, the Veteran reported that he felt tired and would get short of breath after ascending two flights of stairs. He indicated that he was able to perform his activities of daily living. The examiner noted that the Veteran was able to perform 7 to 8 MET in September 2001. The ejection fraction was 37 percent. During a VA examination in August 2005, it was noted that the Veteran had been hospitalized a few months earlier and that he was diagnosed with congestive heart failure and hypertensive cardiomyopathy. The Veteran reported being able to walk about four blocks before becoming fatigued. He said that he was able to conduct his activities of daily living and walk up two flights of stairs. The examiner referred to an October 2003 nuclear stress test that indicated that the ejection fraction as 40 percent. Exercise intolerance corresponded to greater than 8 METs. A private treatment record from April 2006 indicates that the Veteran's left ventricle was dilated, and his ejection fraction was 31 percent. Correspondence a private physician in April 2006 indicated that the Veteran had a long history of hypertensive heart disease with a nonischemic cardiomyopathy and a tendency towards congestive heart failure. The doctor said that he would support the Veteran's request for continued disability in view of his left ventricular dysfunction and "tendency toward congestive heart failure." On VA examination in August 2006, the Veteran complained of dizziness, occasional palpitations, shortness of breath, and weight gain of about two to three pounds in the previous year. It was noted in the Veteran's history that he had congestive heart failure, cardiomyopathy, and atherosclerotic heart disease. He denied having any chest pain, but said he was unable to do any prolonged walking. The examiner discussed some of the Veteran's private treatment records and noted that the Veteran's activity level was about 7 METs while ejection fraction was about 31 percent. In October 2006, the Veteran's spouse indicated he was unable to tolerate strenuous activity. She noted that he would become short of breath when he exerted himself and stated that he suffered from heart palpitations and dizziness. An October 2007 private medical record indicated that the Veteran's left ventricle was dilated, and the ejection fraction was 31 percent. In duplicate letters in December 2009 and May 2010 from a private physician, it was noted that the Veteran had been under the care of that physician for 19 years with a long-standing history of hypertension, hypertensive heart disease, and coronary artery disease with severe left ventricular dysfunction. The Veteran's left ventricular ejection fraction ranged between 25 and 35 percent. It was noted that he on the following medications for his hypertension: Tenormin, Monopril, Zocor, and Lasix. It was also noted that he had recurrent symptoms of congestive heart failure and significant left ventricular dysfunction with decreased exercise tolerance. It was noted that the Veteran needed treatment for blood pressure and had a "tendency toward CHF." In February 2010, a private physician stated that the Veteran was attempting to establish a total disability rating as a result of arteriosclerotic heart disease and commented that the Veteran was unable to work due to his heart disability. He noted that he had reviewed the November 2008 Board decision, as well as private and VA medical reports, and he referenced the medical reports in his examination report. The physician concluded that the Veteran had chronic arteriosclerotic heart disease and hypertensive cardiomyopathy and that he was unemployable since 1999. He further stated that the Veteran had chronic heart failure and that his occasional ability to exceed three METs without dyspnea, fatigue, angina, dizziness, or syncope does not in any way militate against the diagnosis of chronic compensated heart failure. He stated that the Veteran's documented symptoms and repeated studies showed poor left ventricular function indicating a very guarded prognosis and that the appropriate diagnosis would be chronic congestive heart failure because these symptoms are recurrent. An April 2010 VA treatment note indicated that the Veteran was "CHF compensated on current meds." At the Veteran's August 2010 VA examination, it was noted that the Veteran denied having any hospitalization over the past year for any heart-related conditions. The Veteran reported being able to perform household chores without difficulty, and he could climb at least one flight of steps without problems, but he had fatigue on a daily basis related to heavy exertion. He was diagnosed with chronic heart failure based on diffuse hypokinesis and reduced ejection fraction on echocardiogram and stress testing but that it was stable at the time. He concluded that an ejection fraction of 35 percent best described the Veteran's impairment with an estimated METs to be a 6. The January 2011 VA examiner reviewed the Veteran's medical history. At the examination, he had no complaints of fatigue or dyspnea at rest, but did report having reduced his exertion to only going up three flights in his home at most twice a day. He had occasional palpitations that occurred once or twice a week and that resolved within seconds. There was no history of syncope or dizziness. On physical examination, the Veteran had no jugular venous distention and no carotid bruits bilaterally. He was diagnosed with chronic heart failure, without an acute component within the last year, a left ventricular ejection fraction between 31 and 35 percent, and his exercise tolerance was limited with fatigue first noted at 4.6 METs. In May 2011, the Veteran's private physician stated that he had chronic congestive heart failure since 1999 and commented that he was unemployable since June 1999. It was noted that the Veteran was in constant pain from gout, kidney stones, and shortness of breath with exertion, and indicated that he is on a list of medications including Celebrex, Lasix, Atenolol, Digoxin, Metformin, and Simvastatin. Another May 2011 treatment note stated that the Veteran's left ventricular dysfunction was 25 to 30 percent and indicated that his clinical picture did not allow him to be employable at this time, nor had it changed over the past number of years. It was noted that he had dilated cardiomyopathy with chronic systolic heart failure for the past 9 years. In June 2011, a private physician stated the Veteran's heart disease is best described as "chronic congestive heart failure" and that it is at least likely as not that the Veteran's chronic congestive heart failure rendered him unemployable since 1999. He then described the Veteran's medication and stated that, although the Veteran's medication can be utilized to treat various medical conditions, that when taken together they are used for chronic congestive heart failure in over 99 percent of the patients with that condition. He stated with a reasonable degree of medical certainty that the Veteran suffered from chronic congestive heart failure and commented that the Veteran does not have neck vein distention, a third heart sound, or pulmonary congestion because of the very powerful medication, which is standard therapy for chronic congestive heart failure. Based on the foregoing, the evidence suggests that the Veteran's arteriosclerotic heart disease is productive of congestive heart failure. The August 2005 VA examiner noted that the Veteran had been previously diagnosed with congestive heart failure, and a private physician indicated in April 2006 that the Veteran had a tendency towards congestive heart failure. The August 2006 VA examiner also noted that the Veteran had a history of congestive heart failure. In addition, December 2009 and December 2010 letters from a private physician stated that he had recurrent symptoms of congestive heart failure. It was noted that the Veteran had a "tendency toward CHF." In addition, in February 2010, a private physician stated further commented that the Veteran had chronic heart failure and that his occasional ability to exceed three METs without dyspnea, fatigue, angina, dizziness, or syncope does not in any way militate against the diagnosis of chronic compensated heart failure. He stated that the Veteran's documented symptoms and repeated studies showed poor left ventricular function indicating a very guarded prognosis and that the appropriate diagnosis would be chronic congestive heart failure because these symptoms are recurrent. Moreover, an April 2010 VA treatment note indicated that the Veteran was "CHF compensated on current meds." The August 2010 and January 2011VA examiners also diagnosed him with chronic heart failure. Further, in May 2011, the Veteran's private physician stated that he had had chronic congestive heart failure since 1999. In June 2011, a private physician stated the Veteran's heart disease is best described as "chronic congestive heart failure" and that it is at least likely as not that the Veteran's chronic congestive heart failure rendered him unemployable since 1999. Such evidence shows that the Veteran has developed chronic congestive heart failure. Accordingly, the Board finds that the present severity of the disability at issue is more appropriately reflected by a 100 percent evaluation. The benefit of the doubt is resolved in the Veteran's favor. See 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. ORDER Subject to the provision governing the award of monetary benefits, a 100 percent disability evaluation for arteriosclerotic heart disease is granted. REMAND The Court has recently held that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). As previously noted, Veteran and the medical evidence have suggested that he may be unemployable due to his service-connected arteriosclerotic heart disease. In the decision above, the Board has granted a 100 percent disability evaluation for the Veteran's arteriosclerotic heart disease. On June 7, 1999, VA's General Counsel issued VAOGCPREC 6- 99, which addressed questions related to whether a claim for a TDIU may be considered when a schedular 100 percent rating is already in effect for one or more service- connected disabilities. Essentially, that precedent opinion held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU and required dismissal of the TDIU claim. See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 34- 35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot). However, in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s) . Thus, the Court reasoned, it might benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted. In view of the issuance by the United States Court of Appeals for Veterans Claims of its decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which takes a position contrary to the one reached in the precedent opinion, the General Counsel subsequently took action in November 2009 to withdraw the prior opinion. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VAOGCPREC 6-99. Based on the foregoing, the Board finds that the issue of entitlement to TDIU is on appeal. After a careful review of the Veteran's claims file the Board finds that further development is warranted for the issue of TDIU. First, the Board finds that the issue of entitlement to TDIU is an inferred claim since the medical evidence shows that the Veteran has been unemployable since 1999. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that an individual unemployability claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. As the Court recently reasoned in a non-precedential, single judge memorandum decision, given that the Board has jurisdiction over the claim for individual unemployability but the evidence has not been developed enough for proper appellate adjudication, a remand, not a referral, is the appropriate action. See Muma v. Shinseki, No. 09-2734, 2010 WL 4126458 (Vet. App. Oct. 21, 2010) (Kasold, C.J., mem.). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). The Board finds that the individual unemployability aspect of the Veteran's claim must be remanded for further development, to include a VA examination, the report of which must contain an assessment offered by a VA examiner as to whether Veteran is able to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 U.S.C.A. § 5103A (West 2002); see also Colayong v. West, 12 Vet. App. 524, 538-40 (1999); Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Board notes that the Veteran is currently service-connected for arteriosclerotic heart disease, hypertension, pseudofolliculitis barbae, and arthritis of the left hand. Prior to any VA examination the RO should obtain and pertinent medical records. Therefore, the RO should develop a claim for TDIU in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, the case is REMANDED for the following action: The RO should consider whether the Veteran is entitled to TDIU under the provisions of 38 C.F.R. § 4.16, based on impairment attributable to his service-connected disorders, in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). In so doing, the RO may decide to pursue further development of the Veteran's employment history or to obtain additional medical evidence or medical opinion, as is deemed necessary. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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. 2010). ______________________________________________ JESSICA J. WILLS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs