Citation Nr: 1508031 Decision Date: 02/24/15 Archive Date: 02/26/15 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 K. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1994. This appeal came before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, 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. In December 2013, this matter was once again before the Board and the Veterans appeal was denied. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC), which issued a Memorandum Decision in October 2014 that vacated the December 2013 decision and returned the case to the Board. This claim is once again before the Board. 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 heart "fluttering," fatigue, dyspnea, dizziness, with no angina or and with METs of 10 and an ejection fraction as low as 50 percent; and the Veteran has limited physical capacity due to his disability. 2. The competent credible evidence of record is at least in equipoise as to whether the Veteran's service-connected disability prevents him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 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 2014); 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 (2014). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). 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 (2014). 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. Another October 2006 private echocardiogram estimated the ejection fraction was greater than 55%. He was noted to have moderate left ventricular hypertrophy. He was then treated at a private hospital for hypertrophic obstructive cardiomyopathy, episodes of palpitations and presyncope and nonsustained ventricular tachycardia in October 2006 and November 2006. In a November 2006 record, the physician noted concern over the degree of left ventricular hypertrophy and maximal wall thickness and a magnetic resonance imaging test (MRI) was ordered to evaluate the condition further. The physician noted they recommended against strenuous physical activity including climbing telephone poles given the symptoms. The cardiac MRI found the left ventricle was abnormal in wall thickness and contour with concentric mid and apical wall hypertrophy, reduction in left ventricle cavity size consistent with apical variant hypertrophic cardiomyopathy. Systolic function was normal with the exception of the apical inferior wall which was hypokinectic. The ejection fraction was visually estimated at 70%. In December 2006, the Veteran was seen at Duke University Medical Center 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 Medical Center 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. A September 2007 Physical Capacities Evaluation worksheet completed by Dr. A.W. reported that the Veteran's capacity for sitting was four hours and his capacity for standing or walking was two hours. Further, it was noted that if the combined number of hours of sitting, standing/walking does not add up to eight hours, it will be assumed the patient cannot maintain body posture consistent with full-time work. Dr. A.W. stated that the Veteran could not lift more than 10 pounds, could only "occasionally" lift less than 10 pounds, and could not climb, balance, crouch, crawl, or reach above shoulder level. The Veteran's heart disability related fatigue was "disabling to the extent that it prevents the patient from working full time, even in a sedentary position." Dr. A.W. concluded he was a class II on the American Heart Association Functional Capacity scale reflective of patients with cardiac disease resulting in slight limitation of physical activity, comfortable at rest and ordinary physical activity results in fatigue, palpitation, dyspnea or angina pain. Dr. D.K. rated the Veteran as a class I-II. A private physician Dr. R.K., noted the same findings as to capacity for sitting and standing or walking as well as weight and movement restrictions in an October 2007 Physical Capacities worksheet. Dr. R.K. also found that the Veteran's fatigue was disabling to the extent that it prevents the Veteran from working full time, even in a sedentary position. 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, 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 defibrillator 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 a 60 percent evaluation should be assigned for the period of February 13, 2007 to March 28, 2011. Even though at no time during this period did the Veteran suffer from congestive heart failure and testing revealed METS of 10 and no less, the Board finds that the overall disability picture of the Veteran's heart disability more closely approximates the criteria for a 60 percent evaluation. The Veteran had symptoms of fatigue, dizziness, heart palpitations, and dyspnea on exertion. Further, his ejection fraction moved from 60 and 65 percent at the beginning of the period in question and went to as low as 50 percent towards the end of this period. Further, as evidence to support his claim, the Veteran submitted Physical Capacities Evaluations performed in September and October 2007 by two separate doctors that determined that the Veteran's heart disability prevented or severely restricted his ability to engage in physical activities such as, sitting for more than four hours, reaching above shoulder level, balancing and never lifting over 10 pounds. The VA has identified "slow stair climbing, gardening, shoveling light earth, skating and bicycling at a speed of nine to ten miles per hour, carpentry, and swimming" as activities in the range of "greater than 5 but not greater than 7 MET's. See 62 Fed. Reg. 65,207, 65,211 (December 11, 1997) Schedule for Rating Disabilities: The Cardiovascular System. The severity of the Veteran's heart disability is far more limiting that what is described above and as such, more closely approximates a 60 percent evaluation. see also October 2014 Memorandum Decision (noting that the Physical Capacities Evaluations "appear quite restrictive and may align more closely with the lower METs level listed in the 60% evaluation criteria.") Therefore, resolving all doubt in the Veteran's favor, the Board finds that the symptoms experienced by the Veteran between February 13, 2007 and March 28, 2011 warrants the assignment of a 60 percent disability evaluation. The Board has not found evidence of record that the Veteran met any of the criteria for a 100 percent evaluation for this period on appeal. Specifically, there is no evidence of chronic congestive heart failure, or a workload of 3 METs or less, or a left ventricular dysfunction with an ejection fraction of less than 30 percent. As noted above the Veteran has never had congestive heart failure during this period and the lowest ejection fraction noted was 50 percent, far greater than the 30 percent required for a higher rating. While the Veteran's activity as reported on the September and October 2007 physical capacity evaluations was found to be greater than that contemplated by the 30 percent evaluation, the Board does not find that they more nearly approximate a finding of 3 METs or less required for a 100 percent evaluation. Specifically, a workload of 3 METs includes activities such as walking, driving and very light calisthenics. See 62 Fed. Reg. at 65,211. While the physical capacity evaluations noted physical restrictions in conjunction with an 8 hour workday, they do not affirmatively conclude that performing any of the listed activities would result in dyspnea, fatigue, angina, dizziness or syncope. The Board finds it significant that two different physicians (including one who completed a physical capacity evaluation) concluded that the Veteran was a Class I-II on the American Heart Association Functional Capacity scale representing that ordinary physical activity would result in fatigue, palpitation, dyspnea or angina. Neither physician indicated the Veteran was a Class III on this scale that would reflect less than ordinary activity causes fatigue, palpitation, dyspnea or angina and walking more than one level block, climbing one flight of stairs of performing usual activities of daily living cause symptoms. Comparing these symptoms to those noted in the Federal register reflects that a Class III would more nearly approximate the level of METs contemplated by the 100 percent evaluation. As such, an evaluation of 100 percent is not warranted for the period under appeal. Additional Considerations 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. Further in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) a veteran may be entitled to "consideration under 38 C.F.R. § 3.321(b) for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. TDIU The Veteran seeks a total disability evaluation based on individual unemployability due to service-connected disabilities. The Veteran is service connected for the following disabilities: Hypertrophic Cardiomyopathy, evaluated as 60 percent disabling; patellofemoral syndrome bilaterally, evaluated as each 10 percent disabling; left infraclavicular scar, evaluated as 10 percent disabling and amputation of the left middle finger, evaluated as noncompensable. The Veterans total evaluation for the period of February 13, 2007 to March 27, 2011 was 70 percent and for the period of March 28, 2011 to the present, the Veteran's total evaluation is 100 percent. A total disability rating 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 (2014). As the Board has just increased the Veteran's evaluation for his heart disability to 60 percent for the period beginning in February 2007, the Veteran meets the preliminary schedular criterion to establish entitlement to a TDIU. See 38 C.F.R. § 4.16(a). The Veteran filed a claim in February 2007. He reported that he last worked in October 2006. He noted that he retired from his position as a telephone technician at Spring Embarq due to his disabilities. On the Veteran's application, it was noted that he has one year of university education. As evidence to support his claim, the Veteran submitted a letter from Dr. A. W. at Duke University Medical Center that placed him on short-term disability from October 2005 to February 2007. Dr. A.W. released the Veteran back to work in February 2007 with significant restrictions; the Veteran was told not to lift, carry or push anything over 30 lbs. The Veteran also submitted a statement from April 2007 that his knee disabilities cause him problems with walking and standing due to the pain and swelling in knees. He currently has to wear a brace to help him ambulate. Further, a January 2008 VA examination noted that while the Veteran's treating cardiologist, Dr. A.W. had placed certain restrictions on the Veteran's employability (such as not lifting more than 30 pounds), there was no limitation foreseeable concerning 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. In March 2007, Dr. A.W. noted that, although the Veteran had been asymptomatic since his last visit, he was no longer working at the phone company, due to his risk of synocope. At that time, the Veteran had been restricted to climbing no higher than 5 feet. A September 2007 Physical Capacities Evaluation worksheet completed by Dr. A.W. reported that the Veteran's capacity for sitting was four hours and his capacity for standing or walking was two hours. Further, it was noted that if the combined number of hours of sitting, standing/walking does not add up to eight hours, it will be assumed the patient cannot maintain body posture consistent with full-time work. Dr. A.W. stated that the Veteran could not lift more than 10 pounds, could only "occasionally" lift less than 10 pounds, and could not climb, balance, crouch, crawl, or reach above shoulder level. The Veteran's heart disability related fatigue was "disabling to the extent that it prevents the patient from working full time, even in a sedentary position." A private physician Dr. R.K., noted the same findings as to capacity for sitting and standing or walking as well as weight and movement restrictions in an October 2007 Physical Capacities worksheet. Dr. R.K. also found that the Veteran's fatigue was disabling to the extent that it prevents the Veteran from working full time, even in a sedentary position. 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 that 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. 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. Based on the evidence of record, the Board finds that a TDIU is warranted in this case. The Veteran meets the schedular criteria for a TDIU throughout the appeal period and the overall weight of the evidence is at last in equipoise as to whether the Veteran's service-connected heart disability, as well as his knee disabilities, precludes him from performing the physical acts required by employment. His treating physicians imposed numerous physical restrictions and the physical capacity evaluations reflect he would have trouble sitting for four hours. In light of the evidence discussed above, and resolving all doubt in favor of the Veteran, the Board finds entitlement to a TDIU is warranted in the instant case. Duty to Notify and Assist 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 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. ORDER Entitlement to an evaluation in excess of 60 percent, but not more, from February 7, 2007 to March 28, 2011 is granted. Entitlement to a TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs