Citation Nr: 1717469 Decision Date: 05/19/17 Archive Date: 06/05/17 DOCKET NO. 12-07 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent from June 23, 2009 to December 22, 2010 and in excess of 30 percent from December 23, 2010 to present for coronary artery disease (CAD). 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) since June 23, 2011. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Anwar, Associate Counsel INTRODUCTION The Veteran had active service from August 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) from February 2011 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The case was remanded in January 2015 for evidentiary development and for new medical examinations. All actions ordered by the remand have been accomplished and the case is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. From June 3, 2009 to December 22, 2010, the Veteran's coronary artery disease manifested by METS of greater than 7, fatigue, dizziness, and continuous medication but no cardiac hypertrophy or dilation. 2. From December 23, 2010 to present, the Veteran's coronary artery disease manifests with METS of greater than 3 but no greater than 7, fatigue, dizziness, evidence of cardiac hypotrophy, and left ventricular dysfunction greater than 50 percent. 3. The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities preclude him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. From June 3, 2009, to December 22, 2010, the criteria for an initial disability rating in excess of 10 percent for coronary heart disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.104, Diagnostic Code 7005 (2016). 2. From December 23, 2010 to present, the criteria for a disability rating in excess of 30 percent for coronary heart disease have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.104, Diagnostic Code 7005 (2016). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326, 3.327 (2016). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. Regarding claims for increased disability ratings, there need only be generic notice advising the Veteran of the evidentiary and legal criteria for establishing his entitlement to a higher rating, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The RO issued a notice letter to the Veteran in October 2010 that met the VCAA notice requirements. All necessary assistance to obtain evidence has been provided. The Veteran's service treatment and personnel records, pertinent post-service medical records, VA examination reports, Social Security Administration (SSA) records, personal statements, and buddy/lay statements have been added to the case file. There is no indication of any additional relevant evidence that has not been obtained. The Veteran was provided thorough VA examinations in November 2010, May 2012, and August 2015. In addition, an addendum opinion was obtained in February 2016 to further evaluate the claim. These examinations and opinions fully addressed the Veteran's allegations and symptoms, and are probative. The VA examiners reviewed the Veteran's medical history and current symptoms, made clinical observations, and rendered opinions regarding the severity of the disability. In addition, the VA examiners addressed all the relevant rating criteria for rating coronary heart disease (CAD), including the functional impact of the Veteran's disability upon his occupational and social functioning. There is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2016). VA has satisfied its duty to notify and assist and the Board may proceed with appellate review. Increased Ratings Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, 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. See 38 C.F.R. § 4.7. For claims for increased ratings which arise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected coronary artery disease (CAD) is currently rated at 30 percent disabling under Diagnostic Code (DC) 7005. Prior to December 23, 2010, a 10 percent rating was in effect. Under DC 7005, a 10 percent disability rating is warranted for a cardiac workload tolerance of greater than seven metabolic equivalents (METs), but not greater than 10 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; for evidence of a requirement for continuous medication. A 30 percent disability rating is warranted for a cardiac workload tolerance of greater than five METs, but not greater than seven METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; for evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent disability rating is warranted for more than one episode of acute congestive heart failure in the past year, or; for a cardiac workload tolerance of greater than three METs, but less than five METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; for left ventricular dysfunction with an ejection fraction between 30 and 50 percent. A 100 percent disability rating is warranted for chronic congestive heart failure, or; for a cardiac workload tolerance of three METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; for left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. One MET is defined as 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 cannot be done for medical reasons, an estimation by a medical examiner 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). Again, the Veteran was initially rated at 10 percent disabling effective June 3, 2009. The RO increased his disability rating to 30 percent disabling since December 23, 2010, creating a staged rating. The Veteran contends both his initial rating and his subsequent rating should be higher. The Board will discuss each period below. Coronary artery disease (CAD) A. Coronary artery disease from June 3, 2009 to December 22, 2010 In March 2009 a nuclear stress test showed normal left ventricular function with evidence of ischemia. The Veteran was diagnosed with CAD and underwent a cardiac catheterization with stent placement in April 2009. In July 2009 the Veteran reported easy fatigue, mild angina with exertion but indicated that he walked one mile daily. Treatment notes from 2010 reflect chest pain. An electrocardiogram report noted a prior myocardial infarction could not be excluded, and the Veteran was placed on continuous heart medication. At the November 2010 VA medical examination, the Veteran reported a history of hypertension, hypertensive heart disease, heart rhythm disturbances, angina and dizziness. The examiner noted there was no evidence of congestive heart failure or pulmonary hypertension. The Veteran's cardiac rhythm was regular. His METs score was 10.10. The examiner noted the Veteran's condition required "no continuous medication." The Veteran did not have any chest pain during the examination nor were any arrhythmias noted. The examiner opined the limited examination was negative with good exercise tolerance and no symptoms. The Veteran reported the functional impact of his condition was increased absenteeism, lack of stamina, weakness or fatigue, and pain. The Veteran reported he was unable to maintain his lawn or to hunt. The Veteran reported he walked half a mile daily. The preponderance of the evidence is against a disability rating in excess of 10 percent during this time period. Since his initial diagnosis of CAD and his cardiac catheterization, the Veteran was placed on continuous medication and had a METs score of higher than 10. He did not demonstrate lower METs scores, cardiac hypertrophy, or dilation during this period. The claim for a higher initial rating is therefore denied. B. Coronary artery disease since December 23, 2010 Treatment notes from VA Medical Center (VAMC) in Fayetteville report the Veteran demonstrated ventricular hypertrophy on a December 23, 2010, echocardiogram. The heart wall was otherwise normal and ejection fraction was above 50 percent. Based on this evidence, the RO increased the Veteran's disability rating to 30 percent. VA treatment notes indicate the Veteran was hospitalized with chest pain in January 2011 and had another stent placed in March 2011. He demonstrated atrial fibrillation for which he was medicated. Nuclear stress testing showed no ischemia. March 2012 VA treatment notes indicate the Veteran had no cardiac symptoms and reported no syncope. His left ventricular ejection fraction was greater than 60 percent. At the May 2012 VA medical examination, the examiner noted that the Veteran took continuous medication, and that he had a total of five stents placed. He had no myocardial infarction nor congestive heart failure, and had no need for a pacemaker or defibrillator. His stress test showed a METs score of 7, with reported dyspnea and dizziness. The Veteran's left ventricular ejection fraction was above 60 percent. There was no evidence of hypertrophy or enlargement. In October 2012, the Veteran's private physician reported the Veteran's METs score was more than 3 but less than 5, with fatigue and dizziness, but no dyspnea, angina or syncope. The score reflected the ability to perform light yard work or brisk walking. The physician noted the Veteran had uncontrolled atrial fibrillation. December 2013 VA discharge notes report the Veteran was hospitalized for an atrial flutter ablation. He was given additional medication prior to discharge. At the August 2015 VA medical examination, the examiner noted the Veteran had atrial fibrillation with zero episodes in the previous year. An echocardiogram showed cardiac hypertrophy. The Veteran's METs score was 7.5. Regarding functional impact, the examiner opined the Veteran's concerns of dizziness and chest pains were more likely due to his history of atrial fibrillation than the current status of his disability. The examiner opined the Veteran's CAD is "well-controlled" given the five stents and a recent METs score of 7.5. The February 2016 medical examiner noted the August 2015 results, as well as an October 2015 ejection fraction test result of 60 percent. The examiner opined the Veteran's "ejection fraction most closely renders a more accurate finding of his cardiovascular manifestations" which were mainly due to his atrial fibrillation and that "he shows no history of ischemic heart disease." The preponderance of the evidence is against a disability rating in excess of 30 percent since December 29, 2009. The evidence above indicates the Veteran has consistently demonstrated high ejection fraction results above 50 percent, cardiac hypertrophy, and METs scores predominately greater than 5. Although the October 2012 private examiner noted a METs score of greater than 3 but less than 5, the examiner did not report any additional symptoms that have increased in severity, and subsequent METs scores showed 7 or 7.5. The Veteran has not demonstrated congestive heart failure, consistent METs scores between 3 and 5, nor ejection fraction results between 30 and 50 percent throughout this period. A disability rating in excess of 30 percent is denied. TDIU The Veteran contends that he is unable to gain and maintain any type of substantially gainful employment due to service-connected disabilities. A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). 38 C.F.R. § 4.16(a) establishes that the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. In this case, service-connected disability compensation is in effect for CAD at 30 percent, posttraumatic stress disorder (PTSD) at 30 percent since December 23, 2010 and 10 percent prior to that date. Also service-connected is diabetes mellitus type II at 20 percent, tinnitus at 10 percent, temporal-mandibular joint disease (TMJ) at 10 percent, and bilateral hearing loss at zero percent disabling. The Veteran initially claimed total unemployability as part of his increased rating claim on June 23, 2011. However, none of the Veteran's disabilities have a rating of 60 percent or higher. However, the Veteran has had a combined rating of 70 percent since March 7, 2014. Moreover, his coronary artery disease and diabetes mellitus share a common etiology, as both are attributable to in-service herbicide exposure. The combined rating for those disabilities would yield a 44 percent rating, rounded to 40 under the combined rating table. 38 C.F.R. § 4.25. Thus, the percentage threshold under 38 C.F.R. § 4.16(a) has been met since March 7, 2014. However, the evidence weights against an award of TDIU, as explained below. First, it is unclear whether the Veteran is presently employed. A May 2014 letter from a VA clinical social worker noted that the Veteran had taken a position at a local university in the information systems computer department. Subsequent examinations do not state whether such employment was later terminated; in fact such reports are unclear as to the Veteran's employment. However, a May 2016 letter from the Veteran's former wife noted that the Veteran was able to do "side jobs," as well as mow lawns, clean gutters and similar landscaping-related tasks. The Veteran was also able to get under cars to change the oil, according to this statement. It was noted that during 2016 the Veteran added a deck onto his house, including a roof over the deck. Of course, if accepted as credible, the above statements would largely undercut the Veteran's claim for TDIU. Given that this information was provided by an ex-spouse, who may have bias as a result of her relationship with the Veteran, the Board is wary to accept the statement fully at face value. Indeed, there may be motivations at play that could affect the information provided. Moreover, there is no corroborating evidence to back up any of the former wife's assertions. It is certainly possible that the letter reflects a true account of the Veteran's activities; the Board simply lacks enough context to make a reasoned judgment on this point. However, even ignoring the letter, the record fails to demonstrate that the Veteran is incapable of securing and maintaining employment as a result of service-connected disabilities. As noted in the August 2015 VA examination, he had cited dizziness and chest pains and primary reasons for why he could not work. However, the examiner attributed such symptoms to nonservice-connected disorders, including posttraumatic stress disorder, major depressive disorder and atrial fibrillation. Prior to March 7, 2014, the Veteran's service-connected disabilities do not meet the numeric evaluation requirements for TDIU set forth in § 4.16(a), the Veteran may be granted TDIU on an extraschedular basis. 38 C.F.R. § 4.16 (b). Although entitlement to extraschedular TDIU is determined in the first instance by the Director of VA's Compensation Service (Director), the RO and the Board are tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. Id.; see Bowling v. Principi, 15 Vet. App. 1 (2001). That threshold determination must be supported with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). It is the Board, not the examiner, that is tasked with determining whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. Geib v. Shinseki, 733 F.3d 1350 (Fed.Cir.2013). The Veteran was previously self-employed as a drywall installer for over twenty years. He submitted a request for an increased rating based on total unemployability in June 2011 based in part on the physical limitations his CAD placed on him, mainly that he was unable to perform activities beyond light yard work. The Veteran submitted personal statements and lay statements from his former spouse that he was unwilling to travel alone beyond local errands for fear of fainting. In July 2014, the Veteran submitted statements by his social worker and his psychiatrist showing that his mental health conditions required continuous medication and treatment; the statements also indicated the Veteran had a full-time position in the information systems computer department at a local university. As noted previously, the May 2016 statement from his former spouse indicates the Veteran is performing yard work for relatives and neighbors for compensation. In August 2015, a VA examiner opined the Veteran's service-connected diabetes mellitus type II and CAD are stable, and that the Veteran's concerns regarding dizziness and chest pains are more reflective of his PTSD than his CAD. There is no indication that the Veteran was currently unemployed nor unable to procure other sedentary employment. The preponderance of the evidence is against a referral for extraschedular consideration of TDIU. While the Veteran's CAD may have caused the Veteran to retire from his drywall installation business, the Veteran has since been able to secure sedentary work at a local university. Medical examiners have noted the Veteran's CAD and diabetes mellitus type II are stable and that his mental health conditions have not rendered him unable to perform sedentary work in a social setting. The Board finds, based on the record as a whole, that the Veteran is not precluded from substantial gainful employment due to his service-connected disabilities, singly or in combination, and referral for consideration to the Director is not warranted. VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is not applicable in this case because the preponderance of the evidence is against the Veteran's claims. 38 U.S.C.A. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an initial disability rating for CAD in excess of 10 percent is denied. Entitlement to an increased disability rating for CAD, currently evaluated at 30 percent, is denied. Referral for extraschedular consideration of TDIU is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs