Citation Nr: 1752004 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 13-09 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a sleep disorder. 2. Entitlement to increases in the (10 percent prior to April 9, 2007, and 30 percent from that date) ratings assigned for post coronary artery bypass graft (CABG) coronary artery disease (CAD) with arrhythmia and surgical scar of the sternum. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD Erin J. Carroll, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1964 to June 1966. He died in January 2017. The appellant, his surviving spouse, has been declared a valid substitute. This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2010, September 2013, and March 2015 rating decisions by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO), as well as the Atlanta, Georgia RO (which issued the September 2013 rating decision). The November 2010 rating decision granted service connection for the heart disability effective August 10, 2005. However, in a January 2012 rating decision, the Philadelphia, Pennsylvania RO granted an earlier effective date of July 20, 2005 for the grant of service connection for the heart disability. The September 2013 Atlanta, Georgia RO rating decision denied the claim for a TDIU. In May 2016, the Board denied the Veteran's claim for an increased rating for his heart disability. The Veteran appealed the decision to the United States Court of Appeals For Veterans Claims (Court). While on appeal with the Court, the Veteran passed away. In April 2017, the Court granted the appellant's motion to substitute. A May 2017 Joint Motion for Remand (JMR) and Court Order vacated the Board's May 2016 decision as to the heart claim, and remanded the claim to the Board for action consistent with the terms of the JMR. Additionally, in the May 2016 decision, the Board remanded the matters of entitlement to TDIU and entitlement to service connection for a sleep disorder for further development, to include a new opinion regarding TDIU and the issuance of a SOC for the sleep disorder claim. The Board notes that the prior remand directives for the TDIU claim were unable to be completed in full, due to the Veteran's death. As the RO has closed out the May 2016 remand, the Board has reassumed jurisdiction of the issues. Although additional evidence has been added to the record since the last adjudication of this appeal by the Agency of Original Jurisdiction (AOJ), the Appellant submitted a waiver in July 2017, permitting the Board to review the evidence in first instance. The sleep apnea claim is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to April 9, 2007, the Veteran's service connected heart disability was manifested by a workload of 10 METs, a requirement for continuous medication, and a linear (23 cm.) chest scar that was neither painful nor unstable and did not result in limitation of function; a workload of 7 METs or less or cardiac hypertrophy or dilatation on EKG, echocardiogram, or X-ray were not shown. 2. From April 9, 2007, the Veteran's service-connected heart disability has been manifested by left ventricular hypertrophy on echocardiogram, a workload of between 5 and 7 METs, left ventricular ejection fraction of 55 percent or higher, and a linear (23 cm.) chest scar that is not painful nor unstable and does not result in limitation of function; acute congestive heart failure, a workload of 5 METs or less and left ventricular dysfunction with an ejection fraction of 30 to 50 percent are not shown. 3. The evidence demonstrates that from January 1, 2012 to the time of his death, the Veteran's service-connected disabilities rendered him unable to secure or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Ratings for the Veteran's post CABG CAD with arrhythmia and surgical scar of the sternum in excess of 10 percent before April 9, 2007, and/or in excess of 30 percent from that date are not warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code (Code) 7801-7805 (2008), § 4.104, Code 7017 (2017). 2. The criteria for the award of TDIU are met effective January 1, 2012. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.340, 3.341, 4.3, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria and Analysis - IR heart Disability evaluations are determined by the application of 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 practicably be 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. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings". Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's status post CABG and angioplasty with arrhythmia and surgical scar of the sternum (i.e., postoperative ischemic heart disease with surgical scar) was rated as 10 percent prior to April 9, 2007 and 30 percent disabling beginning April 9, 2007, under 38 C.F.R. §§ 4.104, 4.118, Codes 7017 and 7804. Under 38 C.F.R. § 4.104, Code 7017, for coronary artery disease status post coronary bypass surgery, a 10 percent rating is warranted when a workload greater than 7 METs (metabolic equivalents) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is warranted when there is a 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 EKG, echocardiogram or X-ray. A 60 percent rating is warranted when there is more than one episode of acute 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. A 100 percent rating is warranted when there is chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A 100 percent evaluation is also warranted for 3 months following hospital admission for coronary bypass surgery. 38 C.F.R. § 4.104, Code 7017. For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters 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 to rate the veteran. 38 C.F.R. § 4.104. During the pendency of this claim, the criteria for evaluating disabilities of the skin were revised (see 73 Fed. Reg. 54,708 (Sept. 23, 2008), and that the Veteran's claim is considered under the rating criteria effective as of the date of his original claim in August 2005 (see 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (prior to October 23, 2008)). Under Code 7801 for scars other than head, face, or neck, the criteria for a 10 percent rating are deep scars or scars that cause limited motion, which involve an area or areas exceeding 6 square inches (39 sq. cm.). Under Code 7802 for scars other than head, face, or neck, the criteria for a 10 percent rating are superficial scars that do not cause limited motion and involve an area or areas of 144 square inches or greater (929 sq. cm.). Under Code 7803, the criteria for a 10 percent rating are scars that are superficial and unstable. Under Code 7804, the criteria for a 10 percent rating are scars that are superficial and painful on examination. Under Code 7805, scars may be rated on limitation of function of the affected part. Notes to the Codes indicate that deep scar is one associated with underlying soft tissue damage whereas a superficial scar is one not associated with underlying soft tissue, and an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2008). For the period from the effective date of service connection in July 2005 until April 9, 2007, the Board finds that the evidence of record does not show that the Veteran's ischemic heart disease with surgical scar of the sternum approximates the criteria for a rating in excess of 10 percent. That is, VA and private treatment records do not reflect that the Veteran had METs of 7 or less resulting in dyspnea, fatigue, angina, dizziness or syncope, or that there was evidence of cardiac hypertrophy or dilatation on EKG, echocardiogram, or X-ray. Rather, the evidence shows that the Veteran had CABG surgery in 1986 followed by an angioplasty about 7 years later at a private hospital. In February 2005, he was seen by VA for a routine appointment; he had no chest pain, palpitations, or shortness of breath. He was taking medication daily. The assessment was history of coronary artery disease, currently stable with no congestive heart failure. An August 2006 heart perfusion/exercise test showed a left ventricular ejection fraction of 60 percent. A September 2006 private cardiology office visit note shows there was no interval worsening in exertional dyspnea, and the Veteran remained without chest discomfort, palpitation symptoms, and dizziness. In April 2007, he was seen by a private cardiologist who noted the Veteran's fatigue but no other symptoms to suggest angina (it was also noted then that the Veteran had a 10 MET workload the previous August). In consideration of the foregoing, the preponderance of the evidence is against an rating under Code 7017in excess of 10 percent for the period prior to April 9, 2007. From April 9, 2007, the Board finds that the evidence of record does not show that the Veteran's ischemic heart disease with surgical scar approximates the criteria for a rating in excess of 30 percent. That is, the evidence does not show that he had more than one episode of acute congestive heart failure in the past year, that his METs were 5 or less resulting in dyspnea, fatigue, angina, dizziness or syncope, or that he had left ventricular dysfunction with an ejection fraction of 30 to 50 percent. While in March 2013 he expressed his belief that a rating higher than 30 percent was warranted, both VA examinations (in March 2010 and November 2012) noted that he did not experience any congestive heart failure. Moreover, while he complained of intermittent symptoms of angina, shortness of breath, fatigue, and dizziness on both VA examinations, the EKGs at the time of the examinations showed an ejection fraction of 60 percent to 65 percent in 2010 and 66 percent in 2012. Further, his METs at that time of the examinations were greater than 9 in 2010 and estimated at between 5 and 7 based on interview in 2012. The November 2012 examination also indicated normal heart rhythm on an echocardiogram, and a chest X-ray showed that the heart was not enlarged. The Veteran required continuous medication for control of his heart disease. Private treatment records show that on an April 9, 2007 private echocardiogram, there was evidence of left ventricular pathology with mild left ventricular hypertrophy; left ventricular ejection fraction was 55-60 percent. On a May 2009 exercise myocardial perfusion scan, the calculated ejection fraction was 59 percent. VA treatment records also show that he underwent a stress test in January 2011, at which time his METs was 7.2, with chest pain, arrhythmias, and ischemic ECG changes. Based on such findings, in February 2011, he underwent a left heart catheterization and coronary angiography, following which he underwent stent placement. A May 2011 stress echocardiogram showed an ejection fraction of 55 percent (which was the same as was estimated based on a September 2011 echocardiogram). In July 2011, it was noted the Veteran had stable angina occurring with moderate exertion and no symptoms at rest. In November 2011, it was noted that he had improvement of symptoms since a medication was added to his regimen, although he still experienced chest pain with more than moderate exertion. In April and June 2013, he was seen for continuing management of his exertional angina, at which time the Veteran indicated that he was pleased with his angina control. In May 2014, the Veteran denied new chest pain, shortness of breath, dizziness, syncope, palpitations, and lightheadedness. He was continued on his medications. The Veteran was last examined in October 2016. At that examination, the Veteran's ejection fraction was 68 percent. Interview based METs were provided by the examiner, who noted that although, overall, the Veteran's METs levels were from 1-3 METs, such levels were not due solely to the heart condition. When asked to estimate METs levels due solely to the Veteran's heart condition, the examiner indicated that the Veteran's METs levels are 5-7 METs. These levels reflected the lowest activity level at which the Veteran reported dyspnea and fatigue. The examiner noted that the Veteran did not have congestive heart failure, nor did he have arrhythmia, a valve condition, infections, or adhesions. His heart rhythm was regular, with normal heart sounds and peripheral pulses. In consideration of the foregoing, the preponderance of the evidence is against a rating under Code 7017 in excess of 30 percent at any time from April 9, 2007. Moreover, both prior to and from April 9, 2007, the Veteran's surgical scar of the sternum was neither painful nor unstable, as noted in a November 2012 VA examination and the October 2016 VA examination; it was linear and 23 cm. long. It did not result in limitation of function. It has not met the requirements for a compensable rating under any applicable criteria for evaluating scars, and therefore will continue to be evaluated with, as opposed to separate from (with a compensable rating), his heart disease. There are no other potentially applicable evaluation criteria under which the Veteran's disability may be rated higher than his current ratings. Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate ,and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115, (2008). Comparing the Veteran's disability level and the symptomatology of his post CABG CAD to the Rating Schedule, the degree of disability manifested by the various complaints discussed in the decision above is wholly encompassed or covered by the Rating Schedule, which provide for higher ratings for more severe symptoms or related symptoms. For example, the nature and extent of the Veteran's symptoms such as angina, shortness of breath, and fatigue are all incorporated in the schedular criteria for evaluating diseases of the heart, which is based on MET level, existence of congestive heart failure, ejection fraction, etc. In other words, he does not experience any symptoms of his post-CABG CAD disability that are not already encompassed or covered in the Rating Schedule. Moreover, the Veteran has not asserted, and the evidence of record does not suggest, that the collective impact or combined effect of one or more service-connected disability at issue presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). All of the Veteran's service-connected disabilities were recently examined in October 2016, and based on those assessments, the Board is granting entitlement to TDIU below. Thus, there is no gap to be filled between the Veteran's combined rating and the newly assigned 100 percent based on TDIU. In light of the foregoing, the Board finds that the assigned schedular ratings are adequate and that referral for consideration of extraschedular ratings is not required. Legal Criteria and Analysis - TDIU 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. See 38 C.F.R. § 4.16 (2017). A total disability rating for compensation may be assigned where the schedular rating is less than total 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 disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a) (2017). The evidence of record indicates that the Veteran worked as a real estate agent until January 2009. He also reported that he operated a fast food establishment for a period of time. The evidence also demonstrates that the Veteran and the appellant managed a rental property together at least through December 31, 2011. See a November 10, 2012 Report of Income from Property or Business. The report demonstrates that the Veteran managed office space rental properties, earning a gross income of approximately $300,000, with his own share after expenses being approximately $87,000 dollars. However, there is no evidence of employment since December 31, 2011. The Veteran has met the schedular criteria for TDIU under the provisions of 38 C.F.R. § 4.16(a) since September 21, 2009. At that time, his service-connected PTSD and two right hand disability ratings (resulting from the same in-service blast injury) combined to one 50 percent rating, and the additional service-connected heart and hemorrhoid disabilities brought his total combined rating to 70 percent. The Veteran's combined rating increased to 90 percent, effective May 21, 2012, and to 100 percent on August 23, 2016, following the award of service connection for lung cancer. In October 2016, the Veteran's service-connected disabilities were assessed. One VA examiner pertinently indicated that the Veteran had extensive heart disease with a history of CABG making him "quite weak," and that the loss of right thumb sensation would make it difficult to hold objects and write. The examiner also noted that the Veteran was, at the time of the examination, under treatment for service-connected lung cancer. The examiner opined that it was "doubtful that [the] patient can sustain any significant employment." An October 2016 VA heart examiner similarly noted that the Veteran's heart condition's impact on his ability to work was "profound weakness." Previously, a January 2010 examiner opined that he would be unable to handle significant emotional stress in the work place. A November 2012 examiner indicated that the Veteran would be unable to perform strenuous activities while at work. The April 2013 examiner stated that his service-connected hemorrhoids would result in difficulty focusing at work. The evidence noted above favors a finding that prior to his death, the Veteran's service-connected disabilities rendered him unable to secure or follow gainful employment. Significantly however, although he was eligible for TDIU under 38 C.F.R. § 4.16(a) as of September 21, 2009, the evidence demonstrates that he had the ability to work, through at least December 31, 2011. Indeed, he and the appellant managed a profitable property rental business together until that time. As noted above, there is no indication of record that the Veteran demonstrated an ability to work in gainful employment at any time after that point. Therefore, entitlement to TDIU is warranted, effective January 1, 2012. ORDER Ratings for post CABG CAD with arrhythmia and surgical scar of the sternum in excess of 10 percent prior to April 9, 2007, and/or in excess of 30 percent from that date are denied. Entitlement to TDIU is granted, effective January 1, 2012. REMAND The Veteran filed a NOD in April 2015 after the RO denied entitlement to service connection for a sleep disorder in March 2015. The Board previously directed the RO to issue a SOC for this claim in its May 2016 remand. However, on account of the Veteran's death, the RO has not complied with those directives. The appellant has been deemed to be a valid substitute, and the issue remains on appeal. Therefore, on remand, the AOJ should issue a SOC on the matter. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The appellant must be provided a SOC addressing the Veteran's claim for entitlement to service connection for a sleep disorder. If and only if, the appellant files a timely substantive appeal should this issue be returned to the Board. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. 238. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs