Citation Nr: 1742886 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 10-24 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial rating in excess of 60 percent for coronary artery disease (CAD) status-post coronary artery bypass surgery. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability prior to December 30, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1967 to January 1969, to include service in the Republic of Vietnam. His awards and decorations include the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board notes that the Veteran is in receipt of a TDIU effective from December 30, 2012. Accordingly, the Board has construed the appellate claim to reflect this development. Further, the Board notes that it previously identified the TDIU issue as only pertaining to this period and the Veteran has not contested that description, to include in a June 2017 post-remand brief submitted by his accredited representative. In fact, the representative identified the TDIU issue as only pertaining to the period prior to December 30, 2012. The Board also notes that the Veteran previously provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2011. However, that hearing involved issues other than the current appellate claims; and he has not otherwise had a hearing as to these claims. This case was previously before the Board in July 2013, December 2015, and September 2016. In July 2013, the Board remanded the case for further development. Thereafter, in a December 2015 decision the Board, in pertinent part, awarded an initial rating of 60 percent for the service-connected CAD; determined that a rating in excess of 60 percent was not warranted; and found that the Veteran's CAD, alone, did not preclude his performance of substantially gainful employment. The Veteran appealed the Board's December 2015 decision to the United States Court of Appeals for Veterans Claims (Court). By a July 2016 Order, the Court, pursuant to a joint motion for remand (JMR), vacated the Board's December 2015 decision to the extent it denied a rating in excess of 60 percent for the Veteran's service-connected CAD, to include a TDIU based upon the CAD alone; and remanded the case for action consistent with the JMR. The Board remanded the Veteran's appeal for further development in September 2016, to include a new medical examination of his service-connected CAD. Such an examination was accomplished in December 2016, with a March 2017 addendum; and all other development directed by that remand appears to have been substantially accomplished. The case has now been returned to the Board for additional appellate consideration. FINDINGS OF FACT 1. The competent medical and other evidence of record does not reflect during the pendency of this case the Veteran's service-connected CAD has been manifested by congestive heart failure; a 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. 2. The record reflects the Veteran had substantial gainful employment prior to December 30, 2012. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 60 percent for the Veteran's service-connected CAD status-post coronary artery bypass surgery are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.104, Diagnostic Code 7017-7005 (2016). 2. The criteria for assignment of a TDIU due to service-connected disability prior to December 30, 2012, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Board notes, however, that the Veteran has not identified any current deficiency regarding the notification and assistance he has received in this case. In pertinent part, he has not identified any inaccuracy with respect to the VA examinations he has been accorded in this case, nor has he reported his service-connected CAD has increased in severity since the most recent examination in December 2016. Accordingly, the Board need not search for, or address, any such argument. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). The Board will therefore proceed to the merits of the appeal. The Board also notes that it previously determined in the December 2015 decision that the duties to notify and assist had been satisfied. Nothing in the Court's July 2016 Order, or the underlying JMR, disputed that determination. Rather, the focus of the JMR was to effect that the decision provided inadequate reasons and bases for finding the Veteran was not entitled to a TDIU due solely to his CAD. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). The Board is therefore confident that if the Court had any substantive comments concerning the Board's findings regarding the duties to assist and notify, such would have surfaced in the JMR or the Court Order so that any deficiencies could be corrected. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Analysis - CAD Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. More recently, the Court held that "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). The Veteran's service-connected CAD status-post coronary artery bypass surgery is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7017-7005. (A hyphenated Diagnostic Code is used when a rating under one diagnostic code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned.). Under Diagnostic Code 7017, a 100 percent evaluation is warranted for three months following hospital admission for coronary bypass surgery. Thereafter, a 100 percent evaluation is warranted where there is congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of less than 30 percent. A 60 percent evaluation is warranted where there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 30 percent evaluation is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on an electrocardiogram, echocardiogram, or X-ray. Under Diagnostic Code 7005, a 10 percent rating is warranted for arteriosclerotic heart disease (coronary artery disease) with a documented history of coronary artery disease where a workload of greater than 7 METS but not greater than 10 MET's results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent evaluation is assigned for workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs results 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 evaluation is warranted where there is more than one episode of acute congestive heart failure in 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 of 30 to 50 percent. A 100 percent evaluation is warranted with chronic congestive heart failure; or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. In short, it appears the same schedular criteria applies in this case regarding the level of METs and ejection fraction necessary for rating(s) in excess of those currently in effect. 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. 38 C.F.R. § 4.104, NOTE (2). When the level of MET's 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 MET's 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. Id. Initially, the Board notes that the record reflects the Veteran underwent coronary artery bypass surgery in 2009, more than 3 months prior to the August 31, 2010, effective date of service connection for CAD. Although he has had other procedures during the pendency of this case, the provisions of Diagnostic Code 7017 explicitly state that the 100 percent rating is for coronary artery bypass surgery. Thus, he is not entitled to a 100 percent rating under Diagnostic Code 7017 for the first 3 months following admission for coronary artery bypass surgery. The Board further finds that the competent medical and other evidence of record does not reflect during the pendency of this case the Veteran's service-connected CAD has been manifested by congestive heart failure; a 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. In pertinent part, VA examinations in May 2011, December 2014, and December 2016 all found he had not had congestive heart failure; as did a February 2014 private DBQ. Nothing in the other evidence on file, to include medical treatment records, show congestive heart failure during the pendency of this case. The Board also notes that the May 2011 VA examination reflects a stress test was medically contraindicated, and the examiner estimated METS at 6. The February 2014 private DBQ found that a workload of greater than 3 METs but not greater than 5 METs, resulted in fatigue and dizziness. The December 2014 VA examination found a workload of greater than 5 METs but not greater than 7 METs, resulting in angina and dizziness. Further, the December 2016 VA examination stated that the most recent exercise test was in January 2016, and that METS level performed was 7. It was also noted that the test did not show ischemia, and that the test was terminated due to symptoms not related to the cardiac condition specifically leg pain. In addition, the May 2011 VA examination reflects an echocardiogram revealed heart enlargement and mild left ventricular dysfunction, with an ejection fraction of 50. Private medical records also dated in May 2011 show left ventricular ejection fraction of 50 to 55 percent. Thereafter, a July 2011 echocardiography shows a normal left ventricle with an ejection fraction of 73 percent. The February 2014 private DBQ found Veteran's left ventricular ejection fraction was 63 percent, based on a January 2014 stress test. The December 2014 VA examination found an ejection fraction 61 percent, based on a March 2014 stress test. Moreover, the December 2016 VA examination found his left ventricular ejection fraction was 70 percent, based upon January 2016 testing. A thorough review of the other evidence on file does not otherwise indicate any pertinent period(s) where the Veteran met or nearly approximated the criteria for a rating in excess of 60 percent under Diagnostic Codes 7017 or 7005. Therefore, the preponderance of the evidence is against his claim for a schedular rating in excess of 60 percent, to include as a "staged" rating(s) pursuant to Fenderson, supra, and Hart, supra. The Board notes that the Veteran's accredited representative referenced 38 C.F.R. § 3.157 in the June 2017 post-remand brief in support of his appeal. In pertinent part, the provisions of 38 C.F.R. § 3.157 commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. However, this regulation goes on to provide that receipt of clinical reports of examination or hospitalization may serve as informal claims "for increase or to reopen" where the claim is for an already service-connected condition. The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. The Board notes, however, that the appeal has evaluated the Veteran's CAD for the entire period service connection has been in effect from August 31, 2010; and as detailed above there is no distinctive period(s) where he met or nearly approximated the criteria for a rating in excess of 60 percent. Moreover, as detailed in the September 2016 remand, the Board concluded the issue of entitlement to an effective date earlier than August 31, 2010, for the establishment of service connection for CAD was not before it for appellate consideration, in part because the Veteran did not submit a timely Substantive Appeal after a Statement of the Case (SOC) was promulgated on that issue in January 2016. See 38 C.F.R. §§ 20.200, 20.302. The Veteran has not contested that determination by the Board, to include in the June 2017 post-remand brief. The Board acknowledges that in exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Board finds that the rating criteria contemplate the impairment associated with the Veteran's service-connected CAD. As discussed above, the schedular criteria for this disability included evaluation based upon the MET level the Veteran experienced symptoms on exercise stress testing. Stated another way, this schedular criteria included evaluation based upon overall functional impairment. There are no additional symptoms of his CAD that are not addressed by the rating schedule. The rating criteria are therefore adequate to evaluate this service-connected disability. Consequently, referral for consideration of extraschedular rating is not warranted. The Board further notes that it previously determined in the December 2015 decision that the Veteran's CAD did not warrant consideration of an extraschedular rating; and that his CAD symptomatology is fully addressed by the rating criteria under which the disability is rated. Neither the July 2016 Court Order or the underlying JMR disputed that finding; and the record indicates his symptomatology has remained consistent with what was noted at the time of the December 2015 decision. Analysis - TDIU It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). In addition to his CAD, the Veteran is also service connected for cystitis with urethral stricture; residuals of shrapnel wound to the right lower extremity, post-operative arthrotomy, right knee with limitation of motion; mid-sternal scar associated with CAD status-post coronary artery bypass surgery; residuals or shrapnel wound of the left lower extremity; scar, residuals of shrapnel wound, upper right shoulder; scar, residuals of shrapnel wound of the abdomen and chest wall; residual scar, left medial calf associated with CAD status-post coronary artery bypass surgery; and erectile dysfunction associated with cystitis with urethral stricture. He had an overall combined rating of 40 percent from January 25, 1969; 60 percent from May 11, 2009; and 90 percent from August 31, 2010 (date service connection was established for the CAD). The Board notes that the TDIU from December 30, 2012, was assigned based upon the combined effect of the Veteran's service-connected disabilities. However, the JMR that was the basis for the Court's July 2016 Order states that the prior decision of December 2015 contained inadequate reasons and bases as to whether the Veteran's service-connected CAD alone rendered him unable to obtain and follow substantially gainful employment. In pertinent part, the JMR contended the Board erred by not weighing the evidence of record, noting that the May 2011 VA examiner indicated the Veteran's CAD had "mild" effect on occupation and daily activities; the February 2014 private DBQ indicted the CAD did not impact ability to work; and the December 2014 VA examiner concluded the Veteran's heart disability impacted his ability to work to include "difficulty with any laboring type of emp[loyment] to include lifting, carr[y]ing, climbing, stair [sic], ext[ended] walking, ext[ended] standing." The Board also observes that in a March 2017 addendum, the December 2016 VA examiner stated, in part, that the Veteran's only limitation or restriction due to service-connected impairment, especially his CAD, was extreme physical exertion such a manual labor, heaving lifting or running. The Board acknowledges that the aforementioned competent medical findings, as well as other evidence of record, reflects the Veteran's service-connected CAD does result in some degree of occupational impairment. However, the Board finds that such impairment has been adequately compensated by the current schedular rating. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). As noted above, the May 2011 VA examiner stated the Veteran's CAD had resulted in "mild" effect on occupation and daily activities. Although the examiner did not explicitly define what was meant by the term "mild," the Board observes for reference and illustrative purposes that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id at 1038. Thus, it appears the May 2011 VA examiner indicated the service-connected CAD had resulted in little impact on the Veteran's employability. Further, this is consistent with the fact the February 2014 private DBQ found the CAD did not impact ability to work. Moreover, both the December 2014 and December 2016 VA examinations, to include the March 2017 addendum, indicated the CAD only precluded employment involving heavy manual labor. In the March 2017 addendum, it was also explicitly stated there was no sign of any impairment for the demands of the Veteran's job if it remains normal activity or sedentary level; and only limitations would be extreme physical exertion. More importantly, with respect to the pertinent period prior to December 30, 2012, the record reflects the Veteran had substantial gainful employment during this time. Specifically, the record reflects he was employed at the United States Postal Service from the late 1980s until December 29, 2012. Although the Veteran indicated he had lost 250 days due to illness on his November 2013 TDIU application, he indicated that this was for his entire career at the Postal Service. In addition, he indicated on this Application that his claim was based upon the combination of his CAD, cystitis with urethral stricture, and right knee/leg. Stated another way, the Veteran himself did not contend he was unemployable due solely to his CAD. The Board further notes that the Postal Service reported in June 2014 that he had lost no time due to disability during the 12 months preceding his last date of employment. Moreover, the Postal Service reported he had worked 4 days a week during his last year of employment, and indicated he worked more than 40 hours per week. The Veteran himself also indicated on his November 2013 Application that he was working more than 40 hours per week when he left employment. As such, this information reflects he engaged in substantially gainful employment until his last day of work; and there is no indication he was employed in a protective environment such as a sheltered workshop. In view of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to a TDIU due solely to his CAD for the period prior to December 30, 2012; and the claim must be denied. Regarding the reference to 38 C.F.R. § 3.157 in the representative's June 2017 post-remand brief, the record does not reflect the CAD increased in severity prior to that date so as to warrant assignment of a TDIU. The Board also wishes to note that even if it were to consider the period subsequent to December 30, 2012, the December 2014 VA examination, and March 2017 addendum to the December 2016 VA examination, essentially found that while his CAD precluded employment involving heavy manual labor it did not preclude normal or sedentary employment. Moreover, these findings appear consistent with the other evidence of record. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). ORDER An initial rating in excess of 60 percent for CAD status-post coronary artery bypass surgery is denied. A TDIU due to service-connected disability prior to December 30, 2012, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs