Citation Nr: 1340472 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-08 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased evaluation for hypertrophic cardiomyopathy, rated as 30 percent disabling from February 13, 2007 to March 28, 2011. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. ATTORNEY FOR THE BOARD L. M. Barnard INTRODUCTION The Veteran served on active duty from August 1974 to August 1994. This appeal arose before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA), Regional Office (RO), which had increased the disability evaluation assigned to the service-connected hypertrophic cardiomyopathy from 10 to 30 percent, effective February 13, 2007 (the date of his claim for an increased rating) and which also denied entitlement to TDIU. In January 2011, the Board issued a decision that denied the claims on appeal. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC), which issued a Memorandum Decision in March 2012 that vacated the January 2011 decision and returned the case to the Board. In August 2012, the Board remanded the case for further development. On January 31, 2013, the RO issued a rating decision that increased the evaluation assigned for the hypertrophic cardiomyopathy to 100 percent, effective March 28, 2011. Since this decision did not award the maximum evaluation from the date of the claim, the issue of entitlement to an evaluation in excess of 30 percent from February 13, 2007 to March 28, 2011, is still before the Board for adjudication. See AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and request an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation). Therefore, the issue is as characterized on the title page. In May 2013, the Board remanded these claims for additional development. This has been completed and the case has been returned to the Board for further appellate consideration. The record indicates that the Veteran had been represented by a Veterans Service Organization (VSO) in the past. However, in August 2010, he expressed his desire to proceed with his appeal without the benefit of representation. FINDINGS OF FACT 1. Between February 13, 2007 and March 28, 2011, the Veteran's hypertrophic cardiomyopathy has been manifested by some heart "fluttering," daily fatigue, moderate dyspnea, with no angina or dizziness and with METs of 10 and an ejection fraction greater than 50 percent. 2. The Veteran is not precluded from engaging in all forms of substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for the service-connected hypertrophic cardiomyopathy from February 13, 2007 to March 28, 2011 have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.100, 4.104, Diagnostic Code (DC) 7020 (2013). 2. The criteria for the award of TDIU have not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall considerations The Board is obligated by law to ensure that the RO complies with its directives. "[A] remand by ...the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders." In other words, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this case in May 2013. The RO was instructed to have the August 2012 examiner review additional records submitted by the Veteran and to then render another opinion as to the Veteran's employability from 2007 to the present. If the Veteran was found to be unemployable, the case was then to be referred to the Director, Compensation and Pension Service (now known as the Director, Compensation Service) for an opinion. A SSOC was then to be prepared that addressed both issues on appeal and considered all evidence of record. These actions were all accomplished: the VA examiner rendered another opinion in July 2013; the Director, Compensation Service rendered an opinion in July 2013; and a SSOC was issued in September 2013. As a consequence, it is found that the remand instructions have been substantially complied with and no further remand is necessary. VCAA The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in June 2007, August 2008 and in August 2012. This correspondence advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). It also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Board also concludes VA's duty to assist has been satisfied. The Veteran's VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the claims file. Records from the Social Security Administration (SSA) have also been received. As such, the Board finds the duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The Board notes that the Veteran was afforded VA examinations in January 2008 and August 2012, with an addendum in July 2013. The Veteran's TDIU claim was also reviewed by the Director, Compensation Service. See 38 C.F.R. § 3.159(c)(4). These opinions were rendered by medical professionals following a thorough examination and interview of the appellant and review of the claims file. These examiners obtained an accurate history and listened to the appellant's assertions. The examiners laid a factual foundation and reasoned basis for the conclusions that were reached. Therefore, the Board finds that the examinations are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Applicable laws and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2013). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2013). Increased evaluation Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4. 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2, which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, where the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. Provided instead, there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16 (2013). If the claimant does not meet the minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he or she may still be entitled to the benefit sought where the circumstances of the case present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant a TDIU on an extra-schedular basis. See 38 C.F.R. § 4.16(b) (2013). In Bowling v. Principi, 15 Vet. App. 110 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. While the procedures for assignment of a total disability rating on an extraschedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extraschedular evaluation in the first instance. VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether the Veteran is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor which takes the claimant's situation outside the norm of such a case, since the VA rating schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. § 4.1, 4.15. In evaluating a claim for a TDIU, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Other factors that may receive consideration in determining whether a Veteran is unemployable include his employment history, level of education and vocational attainment. See 38 C.F.R. § 4.16(b); see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). By comparison, the impact of any nonservice-connected disabilities, or the Veteran's age, are not factors taken into consideration for this purpose. 38 C.F.R. §§ 3.341, 4.16, 4.19. In addition, "marginal employment" shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a); see also Faust v. West, 13 Vet. App. 342, 355 (2000). Rather, the Court has accepted the definition of substantially gainful employment as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991), citing to VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (December 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09). Factual background and analysis Increased evaluation The condition of hypertrophic cardiomyopathy has been evaluated at the level of 30 percent disabling, since February 13, 2007 to March 28, 2011, under rating provisions of 38 C.F.R. § 4.104, DC 7020, for cardiomyopathy. Pursuant to DC 7020, a 10 percent rating is assigned when the evidence shows workload of greater than seven METs but not greater than ten METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, continuous medication is required. A 30 percent rating is assigned for workload of greater than five METs but not greater than seven METs resulting 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 rating is assigned if there is more than one episode of acute congestive heart failure in the past year; or, workload of greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure; or, workload of three METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7020 (2013). A MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, a medical examiner's estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2. In addition to the preceding rating criteria, VA revised that portion of the Rating Schedule for evaluation of specified cardiovascular disorders, to consist of those rated under Diagnostic Codes 7000 through 7007, 7011, and 7015 through 7020, effective from October 6, 2006. See 71 Fed. Reg. 52,459-60 (Sept. 7, 2006); codified at 38 C.F.R. § 4.100. The revised regulation contains the following new provisions: (1) In all cases, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained. (2) Even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; and when a 100 percent evaluation can be assigned on another basis. (3) If left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the Veteran's cardiovascular disability. In October 2006, the Veteran was hospitalized at a private facility. At admission, his several-year long history of an abnormal EKG was noted; over the preceding two to three days he had had an irregular heartbeat. He stated that he would have a rapid heartbeat that would last about 30 seconds, which left him weak, dizzy and tired. The impression was nonsustained ventricular tachycardia, with an abnormal EKG suggestive of ischemia. In order to rule out hemodynamically significant coronary artery disease, cardiac catheterization was recommended. Following the completion of this procedure, it was found that his left ventricular systolic function appeared to be preserved and he had an ejection fraction that was visually estimated to be 60 to 65 percent. It was concluded that the Veteran did not have obstructive epicardial coronary artery disease and that his left ventricular systolic function was preserved. A subsequent EKG was abnormal with findings consistent with non-obstructive hypertrophic cardiomyopathy. The left ventricular systolic function was intact and his ejection fraction was estimated to be between 60 and 65 percent. The left atrium was mildly dilated and there was mild mitral and tricuspic regurgitation. He was released from the hospital three days later. In December 2006, the Veteran was seen at a local university's medical clinic for his diagnosed apical hypertrophic cardiomyopathy with nonsustained ventricular tachycardia; he was referred for an implantable cardioverter defribillator (ICD) implantation. The consult noted that a cardiac MRI had confirmed that the left ventricle had abnormal wall thickness and contour with concentric mid and apical wall hypertrophy. After obtaining his medical history and following a physical examination, the impression was of apical hypertrophic cardiomyopathy. The Veteran had some palpitations which had improved subsequent to beginning beta blocker therapy. His episodes of near-syncope had resolved. A Holter monitor did record some nonsustained ventricular tachycardia. However, it was recommended that he continue with the beta blocker therapy; if his symptoms changed, ICD implantation would be considered. He was advised that weight lifting was contraindicated given his hypertrophic cardiomyopathy. The Veteran was seen again at the university clinic in January 2007. The nurse practitioner noted that he had been on short-term disability since October 2005 that had initially been for conditions other than the heart disorder. Given his diagnosis of hypertrophic cardiomyopathy, his treating cardiologist had released him to return to work effective February 1, 2007, although there were some restrictions (no lifting, carrying, or pushing more than 30 pounds). In March 2007, the Veteran denied any symptoms since the inpatient evaluation performed in October 2006; this included presyncope, syncope, or palpitations. He was regularly exercising on his treadmill for 30 minutes every day. He stated that he was no longer working at his previous job with the telephone company. The diagnosis was of past medical history of apical hypertrophic cardiomyopathy, asymptomatic since his last visit. He was to continue on his beta blocker therapy. In June 2007, he was continuing to do well; he was able to maintain an active lifestyle and he was further encouraged to expand his exercise routine. He was still asymptomatic when seen in December 2007. He denied any syncopal episodes and it was felt that there was no need for an ICD implanation at that point. He did still feel an occasional fluttering sensation with occasional dizziness. He was to continue with beta blocker therapy. VA afforded the Veteran an examination in January 2008. His October 2006 hospitalization was referred to, as was his diagnosis of apical hypertrophic cardiomyopathy. At the time of this treatment, he had complained of dizziness, sweating, and chest pains. However, his condition since 2006 was noted to have improved. He was still using beta blocker therapy. There was no history of trauma to the heart, cardiac neoplasm, myocardial infarction, congestive heart failure, or rheumatic heart disease. He did have a history of hypertensive heart disease. He had no history of endocarditis, pericarditis, or syncope. He did report daily fatigue, but he denied angina or dizziness since beginning his medication regimen. He did have some dyspnea on exertion. There was a notation that he had been able to sustain a moderate level of exercise of 30 minutes every day without difficulty; however, when asked, the Veteran asserted that he had shortness of breath after walking for five minutes. The objective physical examination noted that the Veteran did not appear to be in any distress. Jugular distention was absent and his heart sounds S1 and S2 were present and he had a regular rate and rhythm without any sign of a murmur. A stress test revealed estimated METS of 10. Testing for left ventricular dysfunction were completed and showed an ejection fraction of 50 percent. His heart size was larger than normal, with moderate enlargement seen on EKG. Normal coronary arteries were seen after an angiogram/thallium test. The EKG showed left ventricular hypertrophy with apical hypertrophic cardiomyopathy. The impression was of apical hypertrophic cardiomyopathy with nonsustained ventricular tachycardia. The examiner could make no comment on the effect that this condition had on the Veteran's occupational activities since he had not worked since starting treatment in 2006. Despite the fact that his cardiologist had indicated that he could return to work as of February 1, 2007, he had not done so. In the opinion of this examiner, there were no limitations to his ability to perform sedentary work, although he had been limited to lifting no more than 30 pounds by his treating cardiologist. VA treatment records note that the Veteran was seen in May 2008 with apical hypertrophic cardiomyopathy with a history of nonsustained ventricular tachycardia. He stated that he had increased fatigue since being placed on Toprol (200 mgs) for the control of his blood pressure. He had shortness of breath while on the treadmill but this was different from his feeling of tiredness. His heart displayed a regular rate and rhythm with no significant murmur and no leg edema. His Toprol was decreased to 50 mgs. On December 12, 2008, he saw an electrophysiologist for follow-up for his history of nonsustained ventricular tachycardia and recurrent palpitations. The Veteran had been considered for the placement of a defribillator in late 2006, but with beta blockers, and with his normal left ventricular function and with no history of frank syncope, it was not felt to be needed. The Veteran noted that his energy had improved with the reduction in the Toprol dosage. He said that he had palpitations once or twice a week, but that they were fleeting. He had occasional lightheadedness with position changes but not with the palpitations. He did have some shortness of breath on exertion, although this had improved with the change in the Toprol dose. His extremities showed no clubbing or edema. A June 2, 2009 VA treatment note indicated that the Veteran was doing well. He had mild to moderate dyspnea on exertion, although this was no different than it had been in the past. He denied chest pain, edema, or significant orthopnea. His heart had a regular rate and rhythm without significant murmur. In July 2009, he indicated that he had had two episodes of ventricular tachycardia since 2007, which had lasted only seconds. He had some lightheadedness but denied presyncope or syncope. An EKG showed normal sinus rhythm. In January 2010, testing revealed an ejection fraction of 51 percent. An echocardiogram showed normal left ventricular function with severe left ventricular hypertrophy; the right ventricular systolic function was normal. In September 2010, no changes in his cardiac status were noted. There was no angina, shortness of breath, presyncope, or syncope. The diagnosis was history of nonsustained ventricular tachycardia, which has been asymptomatic. On January 31, 2011, the Veteran was seen after having recurrent episodes of rapid heartbeats with dizziness; he also noted some "flashing lights." There was no syncope. He also stated that he had recurrent chest heaviness that had prevented all activity. The examination showed normal first and second heart sounds with an intermittent fourth sound. There were no murmurs. An EKG showed normal rhythm with left ventricular hypertrophy. He reported a decline in his functional status. The examiner noted that the Veteran's nonsustained ventricular tachycardia and marked left ventricular hypertrophy together met the criteria for the implantation of a primary prevention ICD. On March 14, 2011, the Veteran stated that on February 27, while driving, he had had an episode of palpitations and dizziness. He had "zoned out." He had a history of palpitations and transient disturbance in consciousness that suggested recurrence of ventricular tachycardia. This condition together with his history of left ventricular hypertrophy put him at risk for sudden death. He agreed at that point for the implantation of an ICD. After carefully reviewing the evidence of record, the Board finds that the 30 percent evaluation assigned from February 13, 2007 to March 28, 2011 best describes the severity of the Veteran's hypertrophic cardiomyopathy during this time frame. At no time during this period did the Veteran suffer from congestive heart failure. Testing revealed METS of 10; greater than 3 METS but not greater than 5 METS was never demonstrated. While the Veteran had referred to some fatigue this appeared to be related to a too high dosage of Toprol (the symptom had resolved after the dosage was reduced). He also had some dizziness that he himself had indicated had been related to position changes and which had not occurred with his occasional palpitations. He specifically denied angina and syncope. He did refer to some dyspnea on exertion, although it was documented in his treatment records that had been able to engage in daily exercise on a treadmill for 30 minutes. His ejection fraction was predominantly between 60 and 65 percent during the period in question and was never less than 50 percent. Therefore, the Board finds that the symptoms experienced by the Veteran between February 13, 2007 and March 28, 2011 did not warrant the assignment of a 60 percent disability evaluation; rather, the 30 percent assigned more closely approximates the degree of severity of his condition at that time. Extraschedular consideration The Board has also considered the potential application of various other provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and is therefore found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary of Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hypertrophic cardiomyopathy is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU The Veteran's service-connected hypertrophic cardiomyopathy has been evaluated as 100 percent disabling since March 28, 2011; however, from February 13, 2007 to March 28, 2001, this disorder was rated as 30 disabling. He was also service-connected for the following: patellofemoral pain syndrome, bilateral, each evaluated as 10 percent disabling; left infraclavicular scar, rated as 10 percent disabling; amputation of the left middle finger, rated as noncompensable; and lumbosacral strain, rated as noncompensable. Prior to March 28, 2011, his combined disability evaluation was 50 percent. It is during this period that the Board will consider entitlement to TDIU. As noted above, total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, where the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities. If there is only one such disability, it must be ratable at 60 percent or more. Provided instead, there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional service-connected disability to bring the combined rating to at least 70 percent. 38 C.F.R. §§ 4.15, 4.16 (2013). If the claimant does not meet the minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he or she may still be entitled to the benefit sought where the circumstances of the case present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant a TDIU on an extra-schedular basis. See 38 C.F.R. § 4.16(b) (2013). Clearly from February 13, 2007 to March 28, 2011, the Veteran did not have at least one disability rated at 60 percent, or one disability rated 40 percent with sufficient additional disability to amount to a 70 percent rating. Consequently, the Veteran does not meet the preliminary schedular criterion to establish entitlement to a TDIU. See 38 C.F.R. § 4.16(a). Regardless, this case may still be considered under the provisions governing entitlement on an extraschedular basis, under 38 C.F.R. § 4.16(b). During the time period in question, the record includes the results of a January 2008 VA examination. The examiner noted that while the Veteran's treating cardiologist had placed certain restrictions on the Veteran's employability (such as not lifting more than 30 pounds), there was no limitation foreseeable in regard to sedentary employment. This opinion was based upon a thorough examination of the Veteran and a complete review of the evidence of record. In fact, the Veteran had been cleared by his treating physician to return to work in February 2007; the Veteran , however, chose not to return to his job as a telephone technician, which he stated involved strenuous activity. While the Veteran might be unable to return to this type of employment, the examiner indicated that he was able to engage in sedentary employment. The Veteran was afforded another VA examination in August 2012. The examiner noted that the Veteran had knee and lumbar problems that limited his mobility. Although the exact METS were not noted, interview-based METS were estimated as greater than 3 but not greater than 5. This MET level was found to be consistent with light yard work, mowing the lawn with a power mower, and brisk walking. The August 2012 VA examiner was asked to review the record again and to provide another opinion. In July 2013, after reviewing the record, the examiner opined: Upon review of the c-file, in my opinion, it is at least as likely as not a (50/50) probability that the Veteran's combined conditions (hypertrophic cardiomyopathy, episodes of ventricular arrhythmia and automatic implanted defibrillation associated with symptoms of near syncope, weakness, dizziness, and shortness of breath). Combined with his diagnosis of osteoarthritis bilateral knee/lumbar strain render him unable to maintain gainful employment. Rationale: The veterans service connected heart condition...combined with diagnosis of osteoarthritis bilateral knee/lumbar strain together prevent the veteran from performing physical and sedentary employment. He is unable to sit, stand, walk, kneel, bend or lift heavy objects for prolonged periods of time. The case was then referred to the Director, Compensation Service for an additional opinion in July 2013. The July 2013 VA examiners opinion was considered but it was stated that, despite this opinion, the Veteran retained substantial capacity for functioning in a work setting. A January 2008 VA examiner had noted that, while he had limits on physical employment because of his cardiac status, there was no foreseeable limitation on sedentary employment. The 2008 opinion was afforded significant probative weight by the Director since it was based on a complete review of the record and a thorough examination of the Veteran. It was further noted that an August 2012 VA examiner had referred to the Veteran's inability to operate heavy machinery or to sit for prolonged periods. However, it was determined that he could engage in light labor and was able to walk briskly. While the determination of the SSA was noted, it was stated that this finding was not binding on VA. The Director concluded that the totality of the evidence did not show that the Veteran was precluded from all forms of gainful employment. He could not engage in physically demanding work, but the evidence suggested that he could do lighter sedentary work. It was specifically found that the July 2013 opinion of the VA examiner was not supported by the evidence of record. Regardless of the question of whether he can carry out his earlier vocation as a telephone technician, the fact remains that there is no medical evidence of record indicating that the Veteran was incapable of participating in more sedentary employment. The Veteran has not been disqualified from substantially gainful employment, given his retained occupational capacity. During the time period in question, the Veteran's hypertrophic cardiomyopathy was successfully treated with medication and participation in a physical exercise regimen. This certainly suggests that an ability to engage in some form of sedentary employment existed at that time. Finally, there is no indication or suggestion that the Veteran's other service-connected disabilities apart from a cardiovascular condition was determinative of his employment capacity, apart from a few months of temporary absence taken due to knee problems. This evidence indicates that the Veteran was able to engage in sedentary employment from February 13, 2007 to March 28, 2011, the date that his hypertrophic cardiomyopathy worsened to the extent that a 100 percent schedular evaluation was found to be warranted. The Board has considered the finding of the SSA that the Veteran is disabled for purposes of receiving benefits from that agency, but ultimately that administrative decision is not binding upon VA. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-1 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). There are specific criteria governing the adjudication of claims for a TDIU, and the evidence directly before the Board in this case substantiates that the complete criteria for a TDIU have not been met. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an evaluation in excess of 30 percent from February 7, 2007 to March 28, 2011 is denied. Entitlement to TDIU is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs