Citation Nr: 1747005 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-03 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating in excess of 60 percent for coronary artery disease status post coronary artery bypass grafting. 2. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to July 1969. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2015, the Board remanded this matter for further evidentiary development. The record indicates that there has been substantial compliance with the terms of the Board's remand directives. Neither the Veteran nor his representative has argued otherwise. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDINGS OF FACT 1. The Veteran's coronary artery disease is manifested by a workload greater than 3 METs and ejection fraction greater than 30 percent, and without congestive heart failure. 2. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW 1. The criteria for an increased rating in excess of 60 percent for coronary artery disease status post coronary artery bypass grafting have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.7, 4.104, Diagnostic Code 7005 (2016). 2. The criteria for a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Neither the Veteran nor his representative has 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). Background The Veteran submitted a claim for a rating in excess of 60 percent for coronary artery disease status post coronary artery bypass grafting and TDIU in November 2011. He asserted that his service-connected coronary artery disease prevented him from obtaining and maintaining gainful employment. The Veteran reported that he last worked as a sheet maintenance supervisor in October 2008. He also reported completion of one year of high school. See December 2011 VA Form 21-8940 The Veteran was afforded a VA medical examination in December 2011. The examiner determined that the Veteran had no history of congestive heart failure. The Veteran's METs level was between 5 and 7, which resulted in dyspnea and fatigue. His left ventricular ejection fraction was noted at 50 percent. The examiner noted a scar that was not painful and/or unstable, or greater than 39 square cm. The examiner opined that the Veteran's service-connected ischemic heart disease without regard for other factors like natural aging, aging-related deconditioning, voluntarily withdrawal from labor market or retirement, and availability of work would not impede his ability to engage in light duty or sedentary work. In pertinent part, review of VA medical records demonstrate that in March 2012, the Veteran reported unilateral paresthesia symptoms occurring for approximately three weeks. The impression of symptomatic high grade stenosis of left internal carotid artery was noted. In a subsequent March 2012 VA medical record, an Elgin Air Force Base examiner reported that the Veteran had critical left carotid stenosis with symptoms of transient ischemic attack. The examiner determined a treatment of left carotid endarterectomy surgery. Review of VA medical records indicate that the Veteran had a daily medication regime for his coronary artery disease of Lisinopril, Digoxin and Metoprolol. There is no documentation beyond 2012 to indicate the furtherance of care for a cardiac condition. In February 2016, the Veteran underwent a VA medical examination. The Veteran reported that he was currently under no cardiology care and not taking nitroglycerin medication. He reported that he was a current smoker, does house chores without assistance, and walks around the block without difficulties. The Veteran reported having a sensation of a box inside is chest. The examiner determined that the Veteran did not have congestive heart failure. There was no evidence of cardiac hypertrophy or cardiac dilatation. The Veteran's METs level was between 7 and 10, and his left ventricular ejection fraction was 58 percent. The examiner noted that the limitation in METs level is due to multiple medical conditions, including the heart condition; however, it was not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The Veteran's multiple co-morbidities include COPD, current smoker and natural deconditioning due to age. The examiner further noted that the Veteran had a scar that was not painful and/or unstable, or greater than 39 square cm. The examiner concluded that the Veteran's heart condition did not impact his ability to work. In April 2016, VA examiners reviewed the Veteran's claim file to assess whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The heart examiner determined that the Veteran's heart condition does not impact his ability to work. The PTSD examiner determined that the Veteran's PTSD symptoms do not impact his ability to engage in physical or sedentary work. The PTSD examiner further noted that there was nothing in the evaluation that suggested the Veteran's PTSD symptoms would preclude him from obtaining and maintain gainful employment. The hearing examiner determined that the Veteran's hearing loss impact on his ability to work was his need to see the speaker's face to understand speech. The general examiner determined that the Veteran is capable of sedentary to light or moderate duty activities based on his service-connected coronary artery condition alone, if he so chooses. Applicable Laws Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2016). Where there is a question as to which of two disability ratings shall be applied, the higher rating 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 (2016). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2016). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Veteran's service-connected heart disability has been Diagnostic Code 7005, for arteriosclerotic heart disease (coronary artery disease). Under the rating criteria, a 60 percent rating is assigned when there is more than one episode of acute congestive heart failure in the past year, or when 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 percent to 50 percent. Id. A 100 percent rating is assigned where there is chronic congestive heart failure; or when there is a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. One 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. Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Coronary artery disease The Veteran seeks a higher rating for his service-connected coronary artery disease status post coronary artery bypass grafting disability. He reports that the rating currently assigned do not reflect the severity of his disability. Applying the criteria set forth above to the facts of the case, the Board concludes that the preponderance of the evidence is against the assignment of an increased rating in excess of 60 percent for coronary artery disease status post coronary artery bypass grafting. As noted above, a 100 percent rating is assigned where there is chronic congestive heart failure; or when there is a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. The evidence of record demonstrates that the Veteran's overall disability picture does not more nearly approximate the criteria for a 100 percent evaluation during any period of the appeal. As delineated in detail above, in the December 2011 VA examination report, the Veteran had no history of congestive heart failure. His METs level was between 5 and 7 that resulted in dyspnea and fatigue. His left ventricular ejection fraction was noted at 50 percent. Similarly, in the February 2016 VA examination report, the Veteran did not have congestive heart failure, and there was no evidence of cardiac hypertrophy or cardiac dilatation. The Veteran's METs level was between 7 and 10, and his left ventricular ejection fraction was 58 percent. As such, the next higher 100 percent rating is not warranted. The Board has considered whether a higher rating is available under any other potentially applicable provision of the rating schedule. However, the Board finds that a higher rating is not warranted based on any other provision of the rating schedule at any time throughout the period of appeal. 38 C.F.R. § 4.104, Diagnostic Codes 7001-7019 (2016). Under DC 7801, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, is deep or causes limited motion, and involves an area or areas of at least 6 square (sq.) inches (39 square cm.), but less 12 sq. inches (77 sq. cm.. A 20 percent disability evaluation is warranted for when it involves an area or areas of at least 12 sq. inches (77 sq. cm.), but is less than 72 sq. inches (465 sq. cm.. A 30 percent disability evaluation is warranted when it involves an area or areas at least 72 sq. inches (465 sq. cm.), but less than 144 sq. inches (929 sq. cm.. A 40 percent evaluation is warranted when it involves an area or areas is at least 144 sq. inches (929 sq. cm.), or greater. See 38 C.F.R. § 4.118, DC 7801 (2014). Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. Under DC 7802, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, that are superficial and nonlinear, and involves an area or areas at least 144 sq. inches (929 sq. cm.), or greater. See 38 C.F.R. § 4.118, DC 7802 (2014). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Under DC 7804, a 10 percent evaluation is assigned for 1 or 2 unstable or painful scars; a 20 percent evaluation is assigned for 3 or 4 unstable or painful scars; and, a 30 percent evaluation is assigned for 5 or more unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804 (2014). Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, if one or more scars are both unstable and painful, an extra 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. Id., Note (2). In this case, the December 2011 and February 2016 VA examiners noted that the Veteran's surgical scar was not painful or unstable or greater than 39 square cm. Accordingly, a compensable disability rating is not warranted under DC 7801 or any of the potentially applicable diagnostic codes set forth in 38 C.F.R. § 4.118. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an increased rating in excess of 60 percent for the Veteran's service-connected heart disability, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016). TDIU VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.10 (2016). Generally, 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. Id. Where the schedular rating is less than total, a total disability rating may nonetheless be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). It is the established policy of 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2016). In reaching such a determination, 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19 (2016); Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether 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. The Veteran seeks a total rating based on individual unemployability, claiming that he is unable to work as a result of his service-connected disabilities. His service-connected disabilities are as follows: coronary artery disease status post coronary artery bypass grafting, rated as 60 percent disabling; PTSD, rated as 30 percent disabling; bilateral hearing loss, rated as zero percent disabling. The Veteran has been in receipt of a combined 70 percent rating since May 25, 2010. See 38 C.F.R. § 4.25 (2016). Under these circumstances, the Veteran does meet the percentage requirements set forth in section 4.16(a) for consideration of TDIU. For the following reasons, the Board finds that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. As set forth in detail above, the Veteran underwent a VA medical examination in December 2011. The examiner opined that the Veteran's service-connected ischemic heart disease without regard for other factors like natural aging, aging-related deconditioning, voluntarily withdrawal from labor market or retirement, and availability of work would not impede his ability to engage in light duty or sedentary work. At his February 2016 VA examination, the examiner concluded that the Veteran's heart condition did not impact his ability to work. In April 2016, the heart examiner determined that the Veteran's heart condition does not impact his ability to work. Likewise, the PTSD examiner determined that the Veteran's symptoms do not impact his ability to engage in physical or sedentary work. The hearing examiner determined that the Veteran's hearing loss impact on his ability to work was the need to see the speaker's face to understand speech. The general examiner determined that the Veteran is capable of sedentary to light or moderate duty activities based on his service-connected coronary artery condition alone. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claim of entitlement to TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER 1. Entitlement to an increased rating in excess of 60 percent for coronary artery disease status post coronary artery bypass grafting is denied. 2. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is denied. ____________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs