Citation Nr: 1752353 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 14-40 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to December 12, 2016, and in excess of 60 percent thereafter, for coronary artery disease status post myocardial infarction (CAD). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 14, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued in by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The decision granted service connection for CAD with an initial 30 percent rating, effective September 14, 2010. In July 2015, the Veteran testified during a Board hearing before the undersigned. In a March 2016 decision, the Board dismissed the appeal for an effective dated earlier than September 14, 2010, for the award of service connection for CAD, and awarded a TDIU, effective September 14, 2010. The Board remanded the issue of entitlement to a higher initial rating and to a TDIU prior to September 14, 2011, for further development. With regard to entitlement to a TDIU prior to September 14, 2010, there has been no allegation that additional efforts are needed to comply with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, in a March 2017 rating decision, the agency of original jurisdiction (AOJ) increased the rating for CAD to 60 percent, effective December 12, 2016. Nevertheless, this issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The issue of entitlement to an initial rating in excess of 60 percent for service-connected CAD is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his service-connected CAD was manifested by an ejection fraction of 30 to 50 percent. 2. The Veteran was gainfully employed prior to September 14, 2011. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 60 percent for service-connected CAD are met, effective September 14, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7006 (2017). 2. The criteria for a TDIU prior to September 14, 2011, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Initial Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. A veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. 4.1; see Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In the case of an initial rating, consideration is given to whether staged ratings are warranted at any time during the period beginning with the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When 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 benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The AOJ has rated CAD under the diagnostic code for coronary artery disease and myocardial infarction (Diagnostic Codes 7006-7005), effective September 14, 2010. 38 C.F.R. § 4.104. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). Under Diagnostic Code 7005, a 30 percent rating is warranted when the evidence demonstrates that a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for 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 rating is warranted for 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, Diagnostic Code 7005. Diagnostic Code 7006 provides the same rating criteria as Diagnostic Code 7005, except that it recognizes a history of documented myocardial infarction, and provides for a 100 percent disability rating during and for three months following a myocardial infarction, documented by laboratory tests. 38 C.F.R. § 4.104, Diagnostic Code 7006. Pertinent evidence of record includes VA treatment records and VA examination reports from May 2012 and December 2016. An August 2010 VA treatment record noted that there was no significant perfusion abnormality, and gated images showed no focal wall abnormality. The Veteran's estimated left ventricle ejection fraction was 46 percent. In May 2012, the Veteran underwent a VA examination. The examiner noted the diagnosis of coronary artery disease in 1989, and that the Veteran's disability required the continuous use of medication. Upon examination, there was no evidence of congestive heart failure, cardiac arrhythmia, heart valve conditions, infectious heart conditions, or pericardial adhesions. Diagnostic testing revealed evidence of cardiac hypertrophy. Echocardiogram revealed a left ventricular ejection fraction of 60 to 65 percent. Interview-based METs testing revealed a level of 5 to 7 METs based on complaints of fatigue. With regard to the functional impact caused by the Veteran's disability on his ability to work, the examiner noted that he would be limited to a METs level that was less than 5 if work was sustained, and 7 or less if he worked in smaller increments. An August 2014 VA treatment record noted that the Veteran was able to achieve 4 METs. A February 2015 VA treatment record noted that the Veteran was only able to achieve 4 METs without angina. A June 2016 VA treatment record noted that the Veteran's left ventricle ejection fraction was estimated to be 50 to 55 percent, and that there was moderate left ventricular hypertrophy with grade 1 diastolic dysfunction. The December 2016 VA examiner estimated that the Veteran's METs level was three to five mets due to dyspnea. Based on the foregoing, the Board finds that an initial 60 percent rating is warranted for CAD beginning September 14, 2010, the effective date of the award of service connection. As noted, a 60 percent rating is warranted where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent, or when a workload of greater than 3 but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope. The August 2010 VA treatment finding of an estimated 48 percent ejection fraction clearly supports a 60 percent rating. Although the May 2012 VA found that the Veteran's estimated ejection fraction was 60 to 65, and his METs level was 7, the examiner also indicated that he would be limited to a METs level that was less than 5 if work was sustained, and the record demonstrates that he was indeed still working. Moreover, the August 2014 and February 2015 VA treatment records, and the December 2016 VA examination report all indicate a METs level between 3 and 5, and the June 2016 VA treatment record noted an estimated ejection fraction of 50 to 55 percent. These findings all support a 60 percent rating. Therefore, after resolving all doubt in his favor, the Board finds that the Veteran's overall disability picture warrants an initial 60 percent rating for his service-connected CAD, effective September 14, 2011. The question of whether the Veteran meets the criteria for a higher rating under Diagnostic Code 7005 or 7006 is deferred pending further development as explained in greater detail in the remand below. II. TDIU In order to establish entitlement to TDIU due to service- connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2006); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, supra; VAOPGCPREC 75-91 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Total disability ratings for compensation may be assigned, in circumstances 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). As a result of the decision above, prior to September 14, 2011, the Veteran was service connected for CAD, rated as 60 percent disabling. Therefore, from September 14, 2010, to September 13, 2011, the Veteran met the schedular criteria for a TDIU. The remaining question, then, is whether the Veteran was precluded from substantially gainful employment prior to September 14, 2011. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether a veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep 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 v. Brown, 4 Vet. App. 361 (1993). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Pertinent evidence of record includes the Veteran's VA treatment records, VA examinations, and his statements, including his July 2015 testimony. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales, supra. August 2010 and December 2010 VA treatment records note that the Veteran's occupation was as a painting supervisor. During a May 2012 VA examination, the Veteran reported that he was still working as a painting supervisor for the local housing authority, and that he had worked there for the last twenty years. During his July 2015 hearing, the Veteran testified that due to the physical limitations associated with his service-connected CAD, he had been demoted from a painting supervisor over a year ago, and that he worked as a painter until roughly February 2015. See July 2015 Hearing Transcript, pp. 16-17. During a December 2016 VA examination, the Veteran testified that he had last worked two year earlier as painting supervisor. The evidence discussed above shows that the Veteran was employed on a full-time basis as a painting supervisor prior to September 14, 2011. Despite the effects that the Veteran's service-connected CAD had on his ability to work, he was nevertheless able to maintain his employment during this period. There is no contention that this employment required accommodation for the Veteran's disability or paid less than the poverty rate for a single person. . Notably, there is no indication in the record, and the Veteran has not asserted, that this position represents anything less than substantially gainful employment. Therefore, as the Veteran was gainfully employed prior to September 14, 2011, the Board finds that entitlement to a TDIU is not warranted for that period. In reaching this conclusion, the Board finds that the preponderance of the evidence is against this claim. As such, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial rating of 60 percent for service-connected CAD is granted. Entitlement to a TDIU prior to September 14, 2011, is denied. REMAND In accordance with the Board's March 2016 remand, the Veteran underwent a VA examination for CAD in December 2016. Unfortunately, the Board finds that the December 2016 VA examination is insufficient to completely resolve the Veteran's claim and that a new VA examination is warranted. For example, in the examination report, the examiner noted that a June 2016 echocardiogram revealed a "normal" left ventricle ejection fraction. However, as noted above, the June 2016 echocardiogram actually noted that the Veteran's left ventricle ejection fraction was estimated to be 50 to 55 percent. The examiner also cited to a July 2015 VA nuclear stress test in which the estimated ejection fraction was noted to be 58 percent. While VA treatment records from July 2015 note that the Veteran underwent a nuclear stress, the complete results of that test, including his estimated left ventricle ejection fraction, are not reflected in the VA treatment records that are currently associated with the record. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). As such, the Board finds that a remand is necessary to obtain any outstanding VA treatment records, including the results of the July 2015 VA nuclear stress test, and to afford the Veteran a new VA examination with a different examination to determine the current nature and severity of his service-connected CAD. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records that are not currently of record, including the results of a July 2015 VA nuclear stress test. 2. After obtaining available VA treatment records, the Veteran should be scheduled for a new VA examination to determine the current severity of his service-connected CAD, if possible, by someone other than the December 2016 VA examiner. The electronic record, to include a copy of this Remand, must be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. 3. If any benefits sought on appeal remain denied issue a supplemental statement of the case. Then, the case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. §§ 5109B, 7112 (2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs