Citation Nr: 1751189 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-15 676 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for coronary artery disease (CAD), status-post myocardial infarction. 2. Entitlement to a disability rating in excess of 70 percent for an acquired psychiatric disorder, to include major depressive disorder and anxiety. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1979, August 1998 to April 1999, and July 2009 to July 2010, to include service in Southwest Asia, as well as periods of Reserve service. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In its October 2011 rating decision, the RO granted service connection for major depressive disorder and anxiety, and assigned a 30 percent disability rating effective August 1, 2010, the day after the Veteran's release from active service. Service connection was also granted for CAD and assigned a 10 percent disability rating, also effective August 1, 2010. In April 2012, the RO increased the Veteran's initial disability rating for CAD to 30 percent. In August 2016, the Board granted an increase in the Veteran's initial disability rating for his acquired psychiatric disorder to 70 percent, effective August 1, 2010, and remanded the issues of entitlement to higher ratings for the service-connected acquired psychiatric disorder and CAD for additional development. The claims have since been returned to the Board for further appellate review. The Board also notes that the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in August 2012 who is no longer employed by the Board. Although offered an opportunity to appear at an additional hearing before a different VLJ, the Veteran declined. A transcript of the August 2012 hearing is of record. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's service-connected CAD has not been manifested by more than one episode of acute, congestive heart failure in the past year; a 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.. 2. The probative evidence of record demonstrates that, throughout the period on appeal, the Veteran's PTSD has been more nearly approximated by occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood; the evidence is against a finding of total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for CAD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). 2. The criteria for a rating in excess of 70 percent for an acquired psychiatric disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Increased Ratings, Generally Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased-rating claim was filed, or even the year prior, until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. And this is true irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119, 127 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). Where there is a question as to which of two evaluations shall 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. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses is to be avoided, as this would constitute pyramiding. See 38 C.F.R. § 4.14. However, this does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). CAD The Veteran was discharged from active duty service on August 1, 2010, after suffering a myocardial infarction in September 2009, with a subsequent angioplasty. As noted in the Introduction of this decision, service connection was granted for CAD in October 2011, and evaluated as 10 percent disabling, effective August 1, 2010. In April 2012, the RO increased the Veteran's initial disability rating to 30 percent. The Veteran asserts that his symptoms warrant a higher disability rating. For the reasons that follow, the Board finds that a higher rating is not warranted for the entire period on appeal. The Veteran's CAD is evaluated under Diagnostic Code 7005, which provides the rating criteria for arteriosclerotic heart disease. 38 C.F.R. § 4.104. A rating of 30 percent is assigned when a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilation on electrocardiogram (EKG), echocardiogram (ECHO) or X-ray. A rating of 60 percent is assigned with more than one episode of acute, congestive heart failure in the past year; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A rating of 100 percent is assigned for chronic congestive heart failure; when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. 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. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing 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). Under 38 C.F.R. § 4.100, the regulations note, in part, that METs testing is not required when there is a medical contraindication. A November stress echocardiogram (EKG) subsequent to the Veteran's September 2009 in-service myocardial infarction noted ischemia and suspected branch vessel distribution disease. Left ventricular ejection fraction was noted at 58 percent. A March 2010 EKG showed normal left ventricular systolic function. The Veteran was afforded a VA general medical examination in December 2010. He reported chest pains two to three times per month and periodic shortness of breath, with nitroglycerin medication as treatment. He also reported that a previous cardiac stress test in late 2009 showed no abnormalities. The VA examiner noted that an EKG dated in November 2010 showed sinus bradycardia, but was otherwise normal. Upon physical examination, the examiner reported that the Veteran's cardiac function was stable, with METs results at 7 to 8. At his August 2012 videoconference hearing before a VLJ, the Veteran reported occasional chest pain and a lack of energy, and that he is medically restricted from lifting over 30 pounds. The Veteran submitted a February 2012 emergency room visit noting a rapid heartbeat. An EKG showed normal sinus rhythm with a rate of 90. Pursuant to Board remand, the Veteran was afforded a VA heart conditions examination in April 2014. The examiner noted the Veteran's in-service myocardial infarction and subsequent angioplasty, and the current diagnosis of CAD. The Veteran reported taking continuous medication. No congestive heart failure, cardiac arrhythmia, heart valve condition, or infectious heart conditions were found. Recent EKG and chest X-rays were normal. The VA examiner noted a June 2012 stress test indicating METs results of 13.7. An interview-based METs test upon examination was provided, with results as greater than 7 to 10 METs. The VA examiner opined that the Veteran's METs in June 2012 more accurately reflected his current cardiac functional level. The Board notes that, later that April 2014, the Veteran sought emergency room treatment again for reported chest pains. Chest X-rays showed the Veteran's heart to be of normal size, with normal pulmonary vascularity. An EKG showed normal sinus rhythm. No acute cardiopulmonary abnormality was found. Subsequently, an additional VA heart conditions examination was afforded to the Veteran in July 2014. No congestive heart failure, cardiac arrhythmia, heart valve condition, or infectious heart conditions were found. The examiner noted an exercise-based METs test performed subsequent to the Veteran's emergency room visit the previous April showed a METs level of 12.2. The VA examiner opined that there was no change in the Veteran's cardiovascular disease status. Based on the foregoing, the Board finds that the Veteran's disability picture most nearly approximates the criteria for the 30 percent disability rating assigned for his service-connected CAD. The Veteran's lowest METs results were 7 to 8 upon VA examination in December 2010. METs testing again in June 2012 and upon VA examination in April 2014 indicated METs of 13.7 and 12.2, respectively. During the entire period on appeal, the evidence of record is against a finding that the Veteran suffered more than one episode of acute congestive heart failure during any given year during; a 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. Therefore, a higher initial rating of 60 percent is not warranted. 38 C.F.R. § 4.104, Diagnostic Code 7005. The Board acknowledges the Veteran's assertions that his heart disability is more severely disabling than the currently awarded disability rating reflects. Indeed, he is competent to describe his symptoms such as shortness of breath and chest pain. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The evidence of record, however, does not support these contentions, nor is the Veteran competent to state the current severity of his heart disease to the extent it requires medical measurements and opinion. There are no other diagnostic criteria under which the Veteran's service-connected CAD would be more appropriately evaluated, as he does not have other heart conditions such as endocarditis, pericarditis, syphilitic heart disease, or hypertensive heart disease. See 38 C.F.R. § 4.104, Diagnostic Codes 7000-7004 and 7006-7123. As the preponderance of the evidence is against a finding that the Veteran's disability more nearly approximates the criteria for a higher rating, a higher rating is not warranted. 38 C.F.R. §§ 4.3, 4.7 (2017). Acquired Psychiatric Disorder The Veteran is service-connected for an acquired psychiatric disorder, specifically depression and anxiety, currently evaluated at 70 percent disabling. By way of history, the Veteran's psychiatric disability was originally rated as 30 percent disabling effective April 18, 2014. The RO subsequently increased the evaluation to 70 percent disabling, effective April 18, 2014. Thereafter, the Board, in its previous August 2016 remand, increased the Veteran's 30 percent disability rating for the period prior to April 18, 2014, to 70 percent, thereby giving the Veteran a 70 percent rating for the entire period on appeal. The Veteran continues to assert that his level of impairment is worse than is contemplated by the current rating assigned. For the foregoing reasons, the Board finds that a higher rating is not warranted. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran's disability is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434 for major depressive disorder. That diagnostic code uses the General Rating Formula for Mental Disorders, which provides that a 70 percent rating is warranted for a mental disorder when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is warranted for a mental disorder when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. Id. In this decision, the Board considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has considered the symptoms indicated in the rating criteria as examples of symptoms "like or similar to" the Veteran's PTSD symptoms in determining the appropriate schedular rating assignment, and has not required the presence of a specified quantity of symptoms in the Rating Schedule to warrant the assigned rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit held that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. At a VA psychology consultation in September 2010, the Veteran reported feeling that he was a failure for not being able to complete his tour of duty due to his in-service myocardial infarction. He reported reliving his cardiac symptoms and expressed a recurrent fear related to the medical care he received in Germany at the time. The Veteran was noted to have been alert, casually dressed, and cooperative, with a sad, anxious, and tearful affect. His mood was noted as mildly depressed. No psychotic thought processes were evident. The Veteran was assigned a GAF score from 48 to 52. The Veteran agreed to outpatient counseling and referral for medication treatment. VA treatment records dated after the September 2010 consultation reflect that the Veteran attended several psychotherapy sessions. He presented, generally, a depressed mood, ruminative thinking style, sad affect, guilt, self-blame, and negativity, as well as continued anxiety about his health and fears of death. No psychotic thought processes, including suicidal or homicidal thoughts, were noted. GAF scores ranged from 48 to 55. A December 2010 treatment record notes the Veteran reporting seeing shadows and dreams about dying. A VA examination was afforded to the Veteran in December 2010. The examiner noted the Veteran's depressed mood, sleep impairment, avoidance of triggers related to in-service stressors, anhedonia, guilt, rumination, low energy, emotional distance from others, and difficulty with medical procedures. Upon examination, the Veteran was noted as being pleasant and cooperative, with normal eye contact. His thinking was clear and he was a good historian. No delusions or hallucinations were reported or observed. His speech was within normal limits and he was fully oriented as to person, place, time, and situation. The Veteran did report occasional panic attacks during times of medical intervention. Although he described his marriage as distant, he reported a close relationship with his grandchildren. The examiner assigned a GAF score of 55 and diagnosed major depressive disorder and anxiety disorder. The examiner opined that the Veteran's symptoms caused considerable impairment in his social and emotional functioning, but he was capable of handling his own financial affairs. In his December 2011 notice of disagreement, the Veteran asserted that he suffered from impaired impulse control, difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, weekly panic attacks, impaired short and long-term memory, impaired judgment, retention of only highly learned material, occasional hallucinations, a frequent inability to find correct words, disturbances of mood and motivation, and forgetting to complete tasks. An August 2011 treatment record notes the Veteran's overall mood as stable although less depressed, less anxious, and less ruminative in his negative thinking. He was alert and cooperative, as well as casually dressed and groomed. No suicidal or homicidal ideation was reported. At his August 2012 videoconference hearing before a VLJ, the Veteran reported nightmares, forgetfulness, anger, anxiety, panic attacks, and passive suicidal ideation. Upon Board remand, the Veteran was afforded another VA examination in April 2014. The Veteran reported the following symptoms related to his disability: depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, feelings of guilt or worthlessness, appetite disturbance or weight loss, and passive suicidal ideation with no plan. The examiner noted that the Veteran was casually dressed and neatly groomed, and was alert and oriented to person, place, and time. The Veteran's affect was, at times, tearful. He expressed lingering guilt and negativity. The examiner found no signs of thought disorder, hallucinations, or delusions. The examiner opined that the Veteran's symptoms caused occupational and social impairment with reduced reliability and productivity. An April 2016 report provided by the Social Security Administration (SSA) noted that the Veteran's psychiatric disabilities mildly restrict his activities of daily living and social functioning, while having a moderate effect on maintaining concentration, persistence, or pace. Upon psychological evaluation for SSA benefits, the Veteran presented with adequate grooming and was cooperative and oriented to person, place, and time. He exhibited normal eye contact and his attention and concentration were intact. There were no gross or fine motor difficulties or unusual physical mannerisms. Although the Veteran exhibited some variability with immediate attention and recall, his memory was noted as intact for recent and remote events. He denied suicidal or homicidal ideation or psychosis. A GAF score of 60 was assigned. Based on the foregoing, the Board finds that the Veteran's psychiatric disability during the course of the appeal has been manifested by no more than occupational and social impairment, with deficiencies in most areas, due to such symptoms as: depression, anxiety, irritability, chronic sleep disturbance, an inability to establish and maintain effective relationships, and disturbances of motivation and mood, which more nearly approximates the criteria for a 70 percent disability rating under Diagnostic Code 9411 that is currently assigned. 38 C.F.R. §§ 4.3, 4.7, 4.130. The Board acknowledges the Veteran's lay assertions regarding the severity of his disability. See Layno, 6 Vet. App. at 469-70. However, the preponderance of the entirety of the evidence of record is against the assertion that the Veteran's PTSD has more nearly approximated total occupational and social impairment (the criteria for a 100 percent total schedular rating under Diagnostic Code 9434). Although the Veteran has reported passive suicidal ideation at his August 2012 hearing and upon VA examination in April 2014, he denied any intent to act. He has denied any active suicidal and homicidal ideation in the remaining evidence of record. Although the Veteran also reported occasional hallucinations, the record does not reflect evidence of any persistent hallucinations, delusions, or illusions. In addition, the Veteran's treatment records dated throughout the course of the appeal show that he has been alert and cooperative, appropriately dressed and groomed, and oriented to time, place and person. The Board also acknowledges that low GAF scores ranging from 48 to 55 were assigned during the period on appeal. The Board notes that the DSM-5 has now been officially released and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. The Board notes, however, because much of the relevant evidence was obtained during the time period that the DSM-IV was in effect, the Board will still consider this information as relevant to this appeal. Furthermore, there is no indication that the Veteran's diagnosis would be different under the DSM-5. A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. §§ 4.125, 4.126, 4.130 (2017); see also Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). However, the current 70 percent rating contemplates social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Thus, the assigned GAF scores are not in significant conflict with the assigned 70 percent disability rating. The Board finds the individual assessments to be more probative than the generally assigned GAF scores. In either event, the evidence is against a finding that a higher rating is warranted. The Board finds his PTSD symptoms are of a similar severity, frequency, and duration of those associated with a 70 percent rating. In sum, as the preponderance of the evidence is against a finding that the Veteran's disability more nearly approximates the criteria for a higher rating, a disability rating in excess of 70 percent is not warranted. 38 C.F.R. §§ 4.3, 4.7 (2017). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a disability rating in excess of 30 percent for coronary artery disease, status-post myocardial infarction, is denied. Entitlement to a disability rating in excess of 70 percent for an acquired psychiatric disorder, to include major depressive disorder and anxiety, is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs