Citation Nr: 1627566 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 14-24 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension, including as due to other service-connected disabilities. 2. Entitlement to an initial rating higher than 10 percent for left knee instability. 3. Entitlement to an initial rating higher than 10 percent for left knee tendinitis. 4. Entitlement to an initial rating higher than 10 percent for coronary artery disease (CAD). 5. Entitlement to an initial rating for lumbar spine disability higher than 10 percent prior to June 2011 and higher than 20 percent thereafter. 6. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Gibson INTRODUCTION The Veteran served on active duty from April 1970 to December 1971. This appeal to the Board of Veterans' Appeals (Board) is from May 2011 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2016, the Veteran had a personal hearing before the undersigned VLJ. The record suggests the Veteran is unemployable due to his service-connected disabilities, therefore the Board has inferred a claim for a TDIU. In this decision, the Board is granting service connection for hypertension and granting an initial 60 percent rating for CAD. The Board is also granting a separate initial rating of 10 percent for the symptoms resulting from a left knee meniscectomy, but remanding the issue of entitlement to higher ratings for the left knee for another examination, as discussed below. The additional issues of whether he is entitled to a higher rating for his lumbar spine, and to a TDIU, are also REMANDED to the Agency of Original Jurisdiction (AOJ) for additional development. The May 2016 VA examination of the bilateral knees suggests that the Veteran's right knee has increased in severity. This issue is not currently before the Board but it is referred to the AOJ for appropriate action, if any. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. In resolving all doubt in the Veteran's favor, his hypertension is secondary to his PTSD. 2. In resolving all doubt in the Veteran's favor, his CAD manifests with dyspnea, fatigue, angina, and dizziness under a workload of between 3 and 5 METs, and has for the entire period under consideration. 3. The Veteran had a meniscectomy in 2008, and has symptoms of pain and swelling as a result. CONCLUSIONS OF LAW 1. The criteria for service connection of hypertension as secondary to PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. § 3.102, 3.310 (2015). 2. The criteria for an initial 60 percent rating for CAD have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.7, 4.104, DC 7005 (2015). 3. The criteria are met for a separate initial 10 percent rating for the left knee for symptomatic removal of the cartilage. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.400(o), 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5259 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act (VCAA) VA has complied with its duty to assist in developing this claim. 38 C.F.R. § 3.159(c). Indeed, his relevant treatment records have been associated with the claims file. He has also been provided with VA examinations to assess the severity of his CAD, which are adequate for adjudicatory purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board is granting a separate initial rating for the left knee based upon the evidence as it stands. However, the Board finds that the May 2016 VA examination of the left knee is inadequate. The responses regarding the meniscus do not correspond with the previous VA examinations. The responses regarding the scars on the left knee suggest they are painful or unstable, although it is unclear which, and a follow up examination was not scheduled. Another examination must be conducted to clarify. However, the record clearly demonstrates entitlement to another separate rating, and the Veteran is not prejudiced by the Board's decision to immediately grant that rating, as the entirety of the left knee will be subject to readjudication. Service connection Service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b) (2015). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran's private physician opined in December 2013 that his PTSD aggravates the Veteran's hypertension, due to the frequency of his panic attacks. The July 2014 VA examiner opined that it was less likely that this was the case because PTSD is not recognized as a cause of hypertension. As the evidence is in equipoise, doubt is resolved in the Veteran's favor. Service connection for hypertension is granted. Increased Initial Ratings Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2015). Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Consistent with the facts found, the rating may be higher or lower for periods of the time under review on appeal, that is, the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). CAD The Veteran's CAD is rated as 10 percent disabling under DC 7005. 38 C.F.R. § 4.104 (2015). This code provides for a 10 percent rating when a workload of greater than 7 metabolic equivalents (METs), but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required. A 30 percent rating is assigned when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned when there is more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where LVEF is less than 30 percent. Id., DC 7005. After review of the evidence, the Board finds that an initial 60 percent rating is warranted for the entire period under consideration. The May 2014 VA examination noted the Veteran experienced dizziness, as well as knee and back pain, with a workload of between 5 and 7 METs. The examiner opined this was due to his heart diagnosis, as well as his panic attacks, which are related to his service-connected PTSD, and also to his service-connected knees and back. Because his service-connected disabilities combine to produce this level of symptomatology, he must be compensated according to the criteria, even though the examiner was not able to attribute the symptoms entirely to his CAD. Accordingly, this evidence corresponds with a 30 percent rating. In July 2014, however, a VA treatment record noted the Veteran had a workload of 4 METs, which again was partially attributed to his service-connected legs and knees. A workload of between 3 and 5 METs corresponds to a 60 percent rating. The Board finds this is the more appropriate rating. The only other workload report, of 9 METs, was shown in July 2009, over a year prior to the effective date of service connection for CAD. It is not clear when the increase in severity actually occurred, although it was clearly shown in 2014. In giving him the benefit of the doubt, the Board finds that the higher level of compensation is warranted for the entire period of appeal. 38 C.F.R. §§ 3.400, 4.104. He is not entitled to the next higher rating, 100 percent, as the evidence has not shown an left ventricle ejection fraction of less than 30 percent, nor has it shown that he can only withstand a workload of 3 METs or less. He has not been shown to have congestive heart failure. Id. The Board has considered whether an extraschedular rating is appropriate, but has not identified any unusual symptoms that are not addressed by the rating schedule. Thun v. Peake, 22 Vet. App, 111 (2008); Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). There is also no evidence that CAD, on its own, has markedly interfered with his work, beyond his current rating, or caused frequent hospitalization. 38 C.F.R. § 3.321(b)(1). He has been hospitalized once, in 2011. He has complained that his work is negatively impacted, but the evidence shows his other service-connected disabilities also impact his work, which will be addressed in the adjudication of whether he is entitled to a TDIU. However, the TDIU is not being remanded for further medical development of the CAD or the left knee; thus, the Board is not holding a "divergent position[] concerning the completeness of the record" in regard to these issues. See Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Rather, as discussed in the Remand section, the TDIU is remanded for the purpose of determining whether his current employment continues to be substantially gainful. Left knee The Veteran's left knee is currently rated as 10 percent disabling under DC 5257 for mild instability, and as 10 percent disabling under DC 5024 for left knee tendinitis. 38 C.F.R. § 4.71a. The left knee is being remanded in this decision for additional development, therefore the Board will not complete a full analysis on all of the potentially applicable DCs. The evidence requires development. However, as mentioned above, the record clearly shows entitlement to a separate initial rating under DC 5259. Under DC 5259, a 10 percent rating is warranted when the semilunar cartilage (the meniscus) has been removed, but there are residual symptoms resulting from that removal. 38 C.F.R. § 4.71a. The Veteran had a left meniscectomy in 2008, as noted on the May 2014 VA examination report. He has residual swelling, stiffness, and pain. These symptoms were also observed at the April 2011 VA examination, therefore, he is entitled to this separate rating for the entire period on consideration. 38 C.F.R. § 3.400(o). Moreover, the Board finds that this symptomatology, at least the swelling, is not overlapping with the other diagnostic codes for which his knee has been rated, thus not violating the prohibition on pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board does not find that discussion of other applicable codes, or extraschedular consideration, are warranted at this time, as this issue is being remanded for development and will be readjudicated. ORDER Service connection for hypertension is granted. An initial rating of 60 percent is granted for CAD. A separate initial rating of 10 percent is granted for the left knee under DC 5259 for symptomatic removal of the semilunar cartilage. REMAND In regard to the lumbar spine, an updated and clarified medical opinion is requested. The Veteran's spine is currently rated as 20 percent disabling. 38 C.F.R. § 4.71, DCs 5243-5237, 5242-5243. Under the criteria applicable to these diagnostic codes, a higher rating would be warranted if the spine was ankylosed, or if his flexion is reduced to 30 percent or less, or if he had at least four weeks of incapacitating episodes due to his back with physician-prescribed bedrest. See id. The March 2016 VA examiner indicated that the Veteran "cannot bend," which suggests that his functional loss results in the equivalence of ankylosis. However, the examiner indicated that there was no ankylosis. A clarification of this contradiction must be obtained. The Board finds the May 2016 VA examination of the left knee is inadequate, as discussed above. Another examination must be conducted. As well, a scars examination of the left knee meniscectomy scar must be conducted. The Veteran has asserted that his disabilities have caused him to be unable to perform the sort of work that he used to do, specifically performing work on RVs and classic cars, and driving to clients for sales calls. He indicated that his salary has been substantially reduced. There is very little evidence regarding his financial and employment situation. On his application for a TDIU, he indicated he was making just under $5500 a month when he stopped working in October 2014. There is no information regarding his employment for 2015, although he is reported to be a part-owner of a business. On remand, more evidence must be obtained regarding his income. He should also be given a vocational assessment to determine the impact of his service-connected disabilities on his ability to obtain and maintain substantial gainful employment. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all treatment he has received for his left knee and back, and make arrangements to obtain all records not already associated with the claims file. 2. Contemporaneously with the above, send the Veteran financial status report forms (VA Form 5655), and ask him to complete them for 2014, 2015, and 2016. Advise him this information is needed to determine eligibility for a TDIU. 3. After receipt of records, schedule the Veteran for an updated examination of the lumbar spine. The examiner is asked to review the records before the exam, and to conduct a complete examination with all necessary diagnostic tests. Range of motion testing must occur. The March 2016 VA examination indicated the Veteran did not have ankylosis. However, the examiner also opined that the Veteran's functional loss resulted in him being unable to bend. The Board would like a clarification of this opinion-is his stiffness and functional loss, which results in him being unable to bend, the equivalent of ankylosis? If so, please comment on whether favorable or unfavorable. The examiner is also asked whether the Veteran has had 4 weeks or more of incapacitating episodes in any 12-month period, since the effective date of service connection (January 2011). To that end, the examiner is asked to provide an opinion on when the Veteran's lumbar arthritis deteriorated to the point that it is now designated as IVDS? All opinions are to be accompanied by explanatory rationale. 4. Schedule the Veteran for an updated examination of the left knee, not with the examiner that conducted the May 2016 VA examination. The examiner is asked to review the records and to conduct a complete examination, along with all appropriate diagnostic testing. All inquiries on the VA examination form are to be addressed. The examiner is asked to test for instability and subluxation, and if found, to provide an opinion on whether the symptoms is slight, moderate, or severe. All symptoms resulting from his left meniscectomy are to be documented. Range of motion testing is to be conducted, along with after repetitions. The examiner is asked to comment on any other functional loss caused by his left knee, and to provide an opinion on how this functional loss impacts his knee-does it result in additionally reduced motion? If so, please estimate the extent of the additional loss. If not additional reduced motion, then list how the functional loss impacts him-for example, how long can he walk or stand? The examiner is asked to elicit details regarding the Veteran's flares, including their frequency, what brings them on, and what alleviates them. Does the Veteran have impairment of the tibia and fibula? Does he have genu recurvatum? If the Veteran's left knee scar is painful or unstable, then a scars examination must be scheduled. All opinions are to be supported by explanatory rationale. 5. Schedule the Veteran for a vocational assessment to determine what sort of employment may be feasible, if any, given his service-connected disabilities, education, training and his work experience, but not his age. 6. Following completion of the above directive, review the claims file to ensure compliance with this remand. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 7. Finally, after completing all of the above, and any additional development deemed warranted, readjudicate the claim on appeal. If the benefit on appeal remains denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case (SSOC) and allow an appropriate time for response. Thereafter, return the file to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs