Citation Nr: 1315944 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 12-31 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability evaluation in excess of 60 percent for mitral stenosis, residuals of remote pneumatic fever. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). The Veteran served on active duty from February 1943 to September 1943. These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran's claims file has since been transferred to the Columbia, South Carolina, RO. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." FINDINGS OF FACT 1. During the appeal the Veteran has not displayed ventricle ejection fractures of less than 60 percent. There have been no active infections, and the Veteran has not displayed congestive heart failure either acutely or chronically. 2. The Veteran's only service-connected disability is mitral stenosis, rated as 60 percent disabling. However, his usual occupations were tugboat operator and cabin master at a country club, and the evidence is in equipoise with respect to whether the Veteran's service-connected disorder precludes him from securing or following a substantially gainful occupation. 3. The Veteran's service-connected disability precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 60 percent for mitral stenosis, residuals of remote rheumatic fever, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103a, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.104, Diagnostic Code (DC) 7000 (2012). 2. The criteria for a TDIU rating have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.340, 3.342, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in July 20100 and November 2011) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in letters dated in the July 2011 letter mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Background The Veteran has been service-connected for mitral stenosis as a residual of rheumatic fever for many years. Service connection was established for this condition in a 1948 rating decision. The 60 percent rating that is currently in effect was granted in an April 2005 rating decision, effective from April 1, 2004. Records at that time included a private April 2004 echocardiography which revealed left ventricular dysfunction with an ejection fraction of approximately 50 percent. VA heart examination in February 2005 revealed that the Veteran could walk 25 feet at a slow pace without dyspnea or stopping to rest. He could not climb stairs. Subsequently dated private and VA records reflect treatment for poorly controlled hypertension. Upon VA examination for that condition in December 2007, it was noted that the Veteran had undergone a nuclear scan of the heart in March 2007. At that time, his left ventricle was normal in size with normal wall motion. His left ventricular ejection fraction was 75 percent. Private records in October 2008 show that the Veteran underwent computerized tomography (CT) scan of the head due to syncopal episodes. The impression was old ischemic changes with no acute process seen. The left ventricles were normal in size, shape, and configuration, and there was no evidence of acute infarction or intracranial hemorrhage. Private records in June 2011 reflect that the Veteran underwent echocardiography and the wearing of a Holter monitor due to chest pain. Testing showed mild concentric left ventricular hypertrophy with normal systolic function and no wall motion abnormalities. Estimated ejection fraction was 60 percent. The Veteran's private physician (A.J.W., M.D.) reported in a June 2011 statement that the Veteran was taking Coumadin and was seen on a monthly basis. When examined by VA in March 2012, the Veteran reported that his work experience was as a tugboat operator and cabin master at a country club. He had not worked since 2000. Currently, his daily activities included watching television with a nap in the afternoon. He attended church services. Testing showed no objective evidence of mitral stenosis per echocardiogram. The examiner opined that the Veteran was capable of light to moderate duty employment based on his heart condition. A.J.W., M.D., reported in a July 2012 statement that he had seen the Veteran since 2008. It was his opinion that the Veteran was unable to work due to his medical conditions. He still continued to suffer from mitral stenosis and was on chronic Coumadin therapy that had to be monitored frequently. He also suffered from cerebral vascular accident residuals and was almost 89 years old. Increased Ratings - In General Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service treatment records. 38 C.F.R. §§ 4.2, 4.41 (2012). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2010); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Under the laws administered by VA, the Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.3 (2012). Analysis - Mitral Stenosis The Veteran's service-connected mitral valvular disease is rated under DC 7000, which specifically pertains to any form of valvular heart disease. See 38 C.F.R. § 3.414, DC 7000. Under this provision, a 60 percent rating is assigned for valvular heart disease (including rheumatic heart disease) when there is more than one episode of acute congestive heart failure in the past year; or 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 percent to 50 percent. Id. A 100 percent rating is for assignment during active infection with valvular heart damage after three months following cessation of therapy for the active infection. Thereafter, with valvular heart disease (documented by findings on physical examination and either echocardiogram, Doppler echocardiogram, or cardiac catheterization) resulting in chronic congestive heart failure; or workload of 3 METs or less results in dyspnea, fatigue, angina dizziness, or syncope; or left ventricular dysfunction with an ejection fracture of less than 30 percent. Id. The RO, in granting the 60 percent evaluation in an April 2005 rating decision, determined that the Veteran's heart condition met that criteria based on the estimate ejection fraction of 50 percent. He did not, however, meet the criteria for a rating in excess of 60 percent at that time as the evidence did not show chronic congestive heart failure; or workload of 3 METs or less results in dyspnea, fatigue, angina dizziness, or syncope; or left ventricular dysfunction with an ejection fracture of less than 30 percent. Similarly, the manifestations that would result in a rating in excess of 60 percent for the current period in question are not demonstrated. Ejection fraction in 2011 was improved to an estimated 60 percent and no active disease or residuals were noted upon VA exam in 2012. Regarding an entitlement to a rating higher than 60 percent for any period of this appeal, the Board must conclude that the criteria for the next-higher and maximum schedular 100 percent rating have not been met. See 38 C.F.R. § 3.414, DC 7000 (2012). The Board further finds that the severity of the Veteran's service-connected mistral stenosis is fully contemplated by the criteria put forth in the applicable schedular rating criteria. That is, there is nothing so unique in the disability picture as to warrant a referral to the Director of VA's Compensation Service for consideration of an extraschedular rating. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); see also Thun v. Peake, 22 Vet. App. 111 (2008). As this is the case, the claim for a rating in excess of 60 percent must be denied. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against a rating in excess of 60 percent. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012). TDIU - In General It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2012). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2012). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2012). The Court noted the following standard announced by the United States Eighth Circuit Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the Claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the Claimant. Moore, 1 Vet. App. at 359. As noted above, a claim for a total disability rating based upon individual unemployability "presupposes that the rating for the [service-connected] condition is less than 100%, and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider." Vettese v. Brown, 7 Vet. App. at 34-35. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment. In a pertinent precedent decision, the General Counsel for VA concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91 (Dec. 27, 1991). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a) (2012). Pursuant to the provisions of 38 C.F.R. § 4.16(b), when a Claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321 (2010). Analysis The Veteran's only service-connected disability is his heart disorder, rated 60 percent disabling, which meets the schedular criteria of 38 C.F.R. § 4.16(a) for a TDIU rating. The Board is cognizant of the Veteran's severe overall disability picture, which is recognized by his 60 percent disability rating. In addition, the Veteran would clearly have difficulty carrying out the responsibilities of a tugboat operator or cabin master at a country club. Moreover, while the March 2012 VA examiner opined that the Veteran would be capable of light to moderate duty employment based on his service-connected condition, the examiner did not provide a rationale for this conclusion and it is therefore entitled to little probative value. Here, an explanation is particularly necessary given the Veteran's employment background and therefore the unlikely prospect of the Veteran being hired for light to moderate duty that would result in substantially gainful employment. The record also includes a July 2012 statement from the Veteran's private physician who concluded that the Veteran was unable to work due to his medical conditions. Significantly, the examiner noted that the Veteran continued to suffer from mitral stenosis, was undergoing chronic Coumadin therapy that had to be monitored on a frequent basis, also suffered from cerebral vascular accident residuals, and was almost 89 years old. Although it is clear that the examiner included nonservice-connected residuals of stroke and the Veteran's age in reaching his opinion regarding unemployability, the Board finds that the examiner's statement could be reasonably interpreted as finding that the Veteran was unemployability based on his service-connected disorder and the medication for that disorder, and that these additional nonservice-connected problems merely contributed to that unemployability. Consequently, with one opinion in favor of the claim and one against, the Board will give the Veteran the benefit of the doubt, and conclude that his service-connected disorder renders him unable to secure or follow a substantially gainful occupation. Accordingly, entitlement to TDIU is warranted. ORDER Entitlement to a disability evaluation in excess of 60 percent for mistral stenosis, residuals of remote pneumatic fever, is denied. Entitlement to a TDIU is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs