Citation Nr: 1742545 Decision Date: 09/26/17 Archive Date: 10/04/17 DOCKET NO. 13-32 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for coronary artery disease (CAD) from March 19, 2008 to April 26, 2009, and a rating in excess of 30 percent on and after April 27, 2009. 2. Entitlement to a total rating based on unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from October 1960 to January 1987, including combat service in the Vietnam War. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the December 2010 rating decision, the RO granted service connection for CAD with a disability rating of 30 percent, effective August 31, 2010. In a June 2011 rating decision, the RO granted an effective date of March 19, 2008 for service connection for CAD with a 10 percent rating from March 19, 2008 to April 26, 2009 and a 30 percent rating on and after April 27, 2009. As these ratings do not provide the maximum benefit available for the full period on appeal, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). This appeal was previously remanded by the Board in January 2016 for further development. It has been returned to the Board for further review. In its January 2016 decision, the Board also found that the issue of entitlement to a TDIU had been raised by the record. In its January 2016 decision, the Board also remanded the issue of entitlement to increased disability ratings for posttraumatic stress disorder for the issuance of a Statement of the Case (SOC). See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Agency of Original Jurisdiction (AOJ) issued the SOC in July 2017. The rating decision on appeal is from 2011 and more than 60 days have elapsed since the issuance of the SOC, and Veteran has not filed a timely substantive appeal. Therefore this issue is no longer before the Board. 38 C.F.R. § 20.302(b)(1)(2016). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. From March 19, 2008 to April 26, 2009, the Veteran's CAD was not manifested by a workload of less than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 2. On and after April 27, 2009, the Veteran's CAD was not manifested by congestive heart failure, a workload of less than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 50 percent or less. 3. The Veteran's service-connected disabilities do not preclude him from performing gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSIONS OF LAW 1. From March 19, 2008 to April 26, 2009, the criteria for a disability rating in excess of 10 percent for CAD were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7005 (2016). 2. On and after April 27, 2009, the criteria for a disability rating in excess of 30 percent for CAD were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7005 (2016). 3. The criteria for an award of a TDIU have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Coronary Artery Disease Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2016). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in March 2008. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran contends that his CAD warrants higher ratings than those currently assigned. It is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7005, for CAD, with a 10 percent rating from March 19, 2008 to April 26, 2009 and a 30 percent rating on and after April 27, 2009. The rating code sheet also mentions 38 C.F.R. § 4.104, Diagnostic Code 7017 (2016), for coronary bypass surgery but, other than a three month period immediately after surgery, the rating criteria are identical. Diagnostic Code 7005 provides that a 10 percent rating is warranted for documented CAD resulting in workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or a requirement of continuous medication. 38 C.F.R. § 4.104, Diagnostic Code 7005. A 30 percent rating is warranted for documented CAD resulting in workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is warranted for documented CAD resulting in more than one episode of congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted for documented CAD resulting in chronic congestive heart failure, or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. The Veteran underwent coronary artery bypass surgery in May 2006. The day before surgery, a left ventriculogram by a private provider showed normal ejection fraction in the 70 percent range. An April 27, 2009 stress test by a private provider reached a final stage of 10 METs and a post-exercise left ventricular ejection fraction greater than 60 percent. An echocardiographic report on the same day noted that the right ventricle was dilated in size. This is the only mention of dilatation in the record. Based on this mention, the RO granted a 30 percent rating, effective April 27, 2009. An April 2010 stress test by a private provider reached a final stage of 7 METs and a post-exercise left ventricular ejection fraction greater than 60 percent. The Veteran has submitted a January 2011 examination by a private physician. The private examiner noted that the Veteran's treatment plan included taking continuous medication for CAD. The examiner also noted that the Veteran did not have congestive heart failure. The examiner noted the results of the April 2010 stress test and the April 27, 2009 echocardiogram, including evidence of cardiac hypertrophy or dilatation. The examiner noted functional effects including dyspnea with exertion, frequent dizziness, and chronic fatigue, but found that fatigue might be related to obstructive sleep apnea. The examiner found that these functional effects would have no impact on the Veteran's ability to work. The Veteran was afforded a VA examination later in January 2011. The VA examiner noted that the Veteran's treatment plan included taking continuous medication for CAD. The examiner also noted that the Veteran did not have congestive heart failure. The examiner noted the results of the April 2010 stress test and found no evidence of cardiac hypertrophy or dilatation. The examiner noted functional effects including shortness of breath after going up a flight of stairs but that he could walk for 30 minutes on level ground. The examiner also noted the Veteran's report that he retired in 2006 following his coronary artery bypass graft surgery. A May 2011 private treatment record notes that left ventriculography found an ejection fraction of 60 percent. A July 2011 private treatment record notes that left ventriculography found an estimated ejection fraction of 55 percent. A September 2011 private treatment record notes a visually estimated left ventricular ejection fraction in the low normal range, from 50 to 55 percent. In his December 2011 Notice of Disagreement (NOD), the Veteran expressed disagreement with the METs measurement of 7 and opined that his symptoms of fatigue, shortness of breath, chest pain, and dizziness warranted a finding of METs between 2 and 3. A December 2012 private treatment record notes that left ventriculography found an ejection fraction of 60 percent. A February 2016 private treatment record notes an ejection fraction of 60 percent and that this represented normal left ventricular function. A private treatment record from later in February 2016 noted that a stress test found the Veteran's left ventricular ejection fraction to be 52 percent at rest and 51 percent during stress. An April 2016 private treatment record notes that left ventriculography found an ejection fraction of 60 percent. The Veteran was afforded an additional VA examination in September 2016. The Veteran reported that he had been using a heart recorder for two years and that treatment providers had been unable to determine the etiology of his shortness of breath, dizziness, and fainting. The examiner noted that the Veteran's treatment plan included taking continuous medication for CAD. The examiner also noted that the Veteran did not have congestive heart failure. The examiner found no evidence of cardiac hypertrophy or dilatation. An echocardiogram found the Veteran's left ventricular ejection fraction to be 60 percent. The examiner determined that exercise stress testing was not required as part of the Veteran's current treatment plan and was not without significant risk, so she conducted an interview-based METs test. Based on that test, the examiner determined the Veteran's METs to be between 1 and 3 but that the level due solely to his cardiac condition was between 3 and 5. The examiner noted the Veteran's age and overall health and noted that METs is based on general conditioning, natural age and combined medical conditions and most elderly individuals had METs of 3-5 irrespective of heart function. For this reason, the examiner opined that left ventricular ejection fraction was a more accurate representation of the Veteran's cardiac function. The examiner found that the Veteran's heart condition would have no impact on his ability to work. Based on the evidence described above, the Board finds that the Veteran's CAD does not warrant an evaluation higher than 10 percent from March 19, 2008 to April 26, 2009. Over the course of this period, while the evidence shows a need for continuous medication, it does not show congestive heart failure, a workload of 7 METs or less, left ventricular dysfunction with an ejection fraction of 50 percent or less, or evidence of cardiac hypertrophy or dilatation. The first and only finding of dilatation in the record was on April 27, 2009. Based on the evidence described above, the Board also finds that the Veteran's CAD does not warrant an evaluation higher than 30 percent on and after April 27, 2009. Over the course of this period, the evidence does not show congestive heart failure or left ventricular dysfunction with an ejection fraction of 50 percent or less. The Board notes the September 2011 estimated ejection fraction of 50 to 55 percent, a range between 50 and 55 percent is more consistent with a finding of ejection fraction greater than 50 percent than it is with a finding of 30 to 50 percent. The Board also notes the September 2016 VA examiner's findings regarding METs. Although the examiner found that METs overall was less than 3 and that the range attributable to CAD was from 3 to 5, the examiner explained convincingly that METs is a less reliable indicator of cardiac function for someone of the Veteran's age and overall health than left ventricular ejection fraction. No other provider or examiner has found METs less than 7. The Board has also considered the Veteran's assertions regarding his cardiac symptoms, which he is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the competence of a lay person to provide a medical opinion must be determined on a case by case basis. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board notes the Veteran's assertion that his symptoms are more consistent with a lower METs measurement, but the Veteran in this case is not competent to make such a conclusion. The record does not show that the Veteran possesses the training or experience needed to evaluate the capacity of his heart on an METs scale and, by the Veteran's report, providers are also uncertain as to the etiology of his reported symptoms. The probative value of the Veteran's assertions is low. In sum, the Board finds that the effects of the Veteran's CAD are most consistent with the currently-assigned disability ratings of 10 percent from March 19, 2008 to April 26, 2009 and 30 percent on and after April 27, 2009. TDIU VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the purposes meeting the requirement of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). The Veteran's combined disability rating is 70 percent. His CAD is rated 30 percent disabling, as described in detail above, and his PTSD is rated 50 percent disabling. For this reason, the Veteran meets the criteria for consideration of a schedular TDIU. In a November 2010 statement, the Veteran's friend and former employer reported that he had to quit working for her in May 2005 due to fainting spells and other health issues. As stated above, during a January 2011 VA examination, the Veteran reported that he retired in 2006 after coronary artery bypass graft surgery. In a July 2016 statement, the Veteran reported that he last worked as an oil technician in May 2005 and ascribed his unemployment to his PTSD. As stated above, the Veteran was afforded a VA examination for heart conditions in September 2016. During that examination, the Veteran reported that treatment providers had been unable to determine the etiology of his shortness of breath, dizziness, and fainting spells. The examiner opined that, based on his CAD alone, the Veteran remained capable of sedentary to light or moderate duty activities, such as lifting less than 30 pounds. The Veteran was also afforded a VA examination for psychiatric conditions in October 2016. The Veteran denied that mental health systems were significantly affecting his ability to work and reported that his physical health was the issue. The examiner opined that the Veteran's PTSD symptoms would only result in an occasional decrease in work efficiency due to problems with fatigue associated with impaired sleep, anxiety, and hypervigilance. The examiner noted that the Veteran was alert and oriented with intact judgment, that there was no evidence of psychosis or a thought disorder, and that he was able to communicate effectively and follow, at least, simple instructions and complete routine tasks. The preponderance of the evidence described above shows that the Veteran's service-connected disabilities, by themselves, do not prevent gainful employment. The Board acknowledges the Veteran's former employer's report that he stopped working due to fainting spells and other physical symptoms, but, as the Veteran reported during his September 2016 VA examination, providers have not been able to connect these fainting spells to any specific etiology, including his service-connected CAD. Even if the Board were to accept that the Veteran's fainting spells are direct results of his CAD, the fact that the Veteran left his employment due to a symptom of a service-connected disability would not be sufficient to show that he is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. VA examiners have found that the Veteran's service-connected disabilities do not prevent gainful employment and no provider or examiner has opined that the Veteran is unemployable due to his CAD, his PTSD, or a combination of the two. The Board finds that the preponderance of the evidence is against the claim for a TDIU and the claim must be denied. In reaching the conclusions above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a rating in excess of 10 percent for CAD from March 19, 2008 to April 26, 2009 is denied. Entitlement to a rating in excess of 30 percent for CAD on and after April 27, 2009 is denied. Entitlement to a TDIU is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs