Citation Nr: 1753934 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 13-14 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected ischemic heart disease (IHD) and/or posttraumatic stress disorder (PTSD). 2. Entitlement to a rating in excess of 10 percent for IHD. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Based on the Veteran's testimony at his June 2017 hearing, the Board finds that the issue of entitlement to a TDIU has been raised as a component of his claim for an increased rating for IHD. In this regard, he testified that he retired early due to his IHD symptoms. Thus, the Board has assumed jurisdiction over such issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board further notes that, at his June 2017 hearing, the Veteran reported that he experienced erectile dysfunction as a result of his IHD. In this regard, effective March 24, 2015, a claim for benefits must be submitted on an application form prescribed by the Secretary. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014) (Dates). Therefore, the Veteran is advised that, if he wishes to file a claim for service connection for erectile dysfunction as secondary to his IHD, he should file the appropriate application with the Agency of Original Jurisdiction (AOJ). 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to the promulgation of a decision by the Board, the Veteran withdrew, on the record during his June 2017 Board hearing, the issue of entitlement to service connection for hypertension. 2. For the entire period, the Veteran's IHD is manifested by the ability to perform a workload of at least 7 METs (metabolic equivalent) before such results in dyspnea, fatigue, and dizziness, with a left ventricular ejection fraction of no less than 55 percent, without evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, or chronic congestive heart failure. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal as to the issue of entitlement to service connection for hypertension by the Veteran have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (West 2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a rating in excess of 10 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1-4.14, 4.104, Diagnostic Code (DC) 7099-7006 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew the issue of entitlement to service connection for hypertension on the record at the June 2017 Board hearing. Consequently, there remain no allegations of errors of fact or law for appellate consideration with regard to such issue. Accordingly, the Board does not have jurisdiction to review the appeal of such issue and it is dismissed. II. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (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 duty to assist argument). III. Analysis The Veteran claims that his IHD is more severe than as reflected by the currently assigned 10 percent rating. Therefore, he contends that he is entitled to a higher rating for such disability. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson at 126; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected IHD is currently evaluated as 10 percent disabling pursuant to DC 7099-7006. Under DC 7006, a rating of 10 percent is assigned when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where continuous medication is required. A 30 percent rating contemplates a workload of greater than 5 METs but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where 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 results 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 where 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. In this regard, one MET 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 requires 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. The evidence referable to the Veteran's claim for a higher rating for his IHD consists of VA examinations dated in August 2011, October 2012, and May 2016; a March 2013 private disability benefits questionnaire (DBQ); his own statements, including those made at the June 2017 Board hearing; and VA and private treatment records dated throughout the appeal period. The Board finds that, for the entire period, a rating in excess of 10 percent for the Veteran's IHD is not warranted as such is manifested by the ability to perform a workload of at least 7 METs before such results in dyspnea, fatigue, and dizziness, with a left ventricular ejection fraction of no less than 55 percent, without evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, or chronic congestive heart failure Here, the Board notes that a workload of greater than 5 METs but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is required for a higher 30 percent evaluation under DC 7006. An August 2011 VA examination report shows a diagnosis of IHD with a history of percutaneous coronary intervention, and a treatment plan that includes taking continuous medication. The Veteran did not have congestive heart failure. Testing results reflect no evidence of cardiac hypertrophy or dilatation. He had a left ventricular ejection fraction of 57 percent. The examiner estimated a workload level greater than 5 METs but not greater than 7 METs, resulting in dyspnea and fatigue, based on an interview of the Veteran. Here, the examiner indicated that the Veteran's ejection fraction was the better estimate of his cardiac status as his METs level at maximum exercise was confounded by other medical disorders, specifically his deconditioning. Additionally, the examiner found that the Veteran's IHD impacted his ability to work. In this regard, the examiner noted that the Veteran last worked in January 2005 at General Motors in a distribution center and his position required repetitive lifting. The examiner further noted that the Veteran would be able to work based solely on his IHD cardiac disorder in a sedentary or light physical activity capacity (lifting up to 25 pounds), but not in a heavier physical activity capacity. A July 2011 VA treatment record reveals that both of the Veteran's ventricles were normal in size with normal wall motion; the right ventricular ejection fraction was 56 percent; and the left ventricular ejection fraction was 57 percent. An impression of normal resting multigated acquisition (MUGA) scan was noted. An August 2011 private treatment record indicates the Veteran's complaint of mild chest discomfort off and on, and shortness of breath with exertion. He denied palpitations or dizziness. An echocardiogram revealed a normal left ventricular ejection fraction and mild left ventricular hypertrophy. An October 2012 VA examination report shows a diagnosis of IHD with a history of percutaneous coronary intervention and myocardial infraction, and a treatment plan that includes taking continuous medication. The Veteran did not have congestive heart failure. Testing results reflect no evidence of cardiac hypertrophy or dilatation. He had a left ventricular ejection fraction of 57 percent. The examiner estimated a workload level greater than 5 METs but not greater than 7 METs, resulting in no reported symptoms, based on an interview of the Veteran. Here, the examiner indicated that the Veteran's estimated METs level was confounded by his other comorbid medical disorders, including cervical spine degenerative disc disease status post recent surgery, and, as such, his cardiac status was better indicated by his ejection fraction, which was normal. Additionally, the examiner found that the Veteran's IHD did not impact his ability to work. In this regard, the examiner noted that the Veteran was retired since 2005 from working at General Motors in a distribution center, and he was not limited from working based on his cardiac disability. A March 2013 private DBQ report shows a diagnosis of coronary artery disease (CAD) with a history of percutaneous coronary intervention and myocardial infraction, and a treatment plan that includes taking continuous medication. The Veteran did not have congestive heart failure. Testing results reflect no evidence of cardiac hypertrophy or dilatation. He had a left ventricular ejection fraction of 55 percent. The private clinician, Dr. V.P., estimated a workload level greater than 5 METs but not greater than 7 METs, resulting in no reported symptoms; however, he did not indicate which disabilities contributed to such limitations. Additionally, Dr. V.P. found that the Veteran's IHD did not impact his ability to work. An April 2013 private treatment record notes that a left heart catheterization was ordered for the Veteran. Subsequently, a May 2013 private treatment record reveals the following findings from such ordered procedure: moderate diffuse coronary artery disease; patent right coronary artery stents; and normal left ventricular ejection fraction with normal left ventricular end diastolic pressures. A May 2013 private letter written by Dr. V.P. includes the opinion that the Veteran had IHD with a workload of greater than 5 METs but not greater than 7 METs, and such disorder was likely the cause of his fatigue and limitations. However, the Board cannot rely on such opinion as it is without a rationale and does not address the impact that his comorbid conditions have on his METs level. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). An August 2013 private treatment record reveals the following findings after testing: a normal treadmill stress exercise test; a normal (negative) electrocardiogram response to exercise; no significant arrhythmias; and symptoms including stress-induced shortness of breath, and fatigue and chest discomfort at peak exercise, which both resolved with rest. A February 2014 private letter written by Dr. V.P. notes that the Veteran first developed cardiac issues in 1982 when he suffered from a myocardial infraction and was hospitalized for three days. Dr. V.P. further noted that the Veteran was treated for coronary atherosclerosis of the native coronary artery in 2004. Additionally, Dr. V.P. indicated that the Veteran had been under his care for coronary disease since 2006, and he was then placed on light work duty due to his cardiac status, but was unable to continue at such level and soon retired. A May 2016 VA examination report shows a diagnosis of coronary artery disease with a history of percutaneous coronary intervention and myocardial infraction, and a treatment plan that includes taking continuous medication. The Veteran did not have congestive heart failure, a cardiac arrhythmia, a heart valve disorder, an infectious cardiac disorder, or pericardial adhesions. Testing results reflect no evidence of cardiac hypertrophy or dilatation. He had a left ventricular ejection fraction of 57 percent. The examiner estimated a workload level greater than 5 METs but not greater than 7 METs, resulting in no reported symptoms, based on an interview of the Veteran. Here, the examiner indicated that the Veteran's estimated METs level was not due solely to his heart disorder. The examiner further indicated that the Veteran's limitation in METs level was due to multiple medical disorders, including his heart disorder, and it was not possible to accurately estimate the percent of METs limitation attributable to each medical disorder. As rationale for the opinion, the examiner reported that the Veteran's estimated METs level was confounded by his other comorbid medical disorders, including obesity, PTSD/depression, chronic headaches, cervical spine degenerative disc disease status post cervical disc fusion, and lumbosacral degenerative disc disease status post lumbar laminectomy, and all of such disorders combined led to a decreased exercise tolerance. With regard to the impact that the Veteran's IHD had on his ability to work, the examiner noted that the Veteran was retired since 2005 from working at General Motors in a distribution center, and he had no functional limitations based on any of his claimed disorders. A June 2017 private letter written by Dr. V.P. notes that he had the opportunity of taking care of the Veteran for the past several years, and his cardiovascular disorder had fortunately been stable. Dr. V.P. further noted that the Veteran's most recent noninvasive evaluation demonstrated stable IHD with an ejection fraction of 63 percent. Additionally, Dr. V.P. indicated that the Veteran's heart disorder was directly dependent upon adequate hypertension control. At his June 2017 Board hearing, the Veteran's representatives asserted that the Veteran meets the criteria for a 30 percent rating as his VA examinations have estimated a workload level greater than 5 METs but not greater than 7 METs, resulting in dyspnea and fatigue. The Veteran's representatives further asserted that the Veteran was not an obese individual and exercises as regularly as he possibly can and, as such, it is his heart that is causing his symptoms. Additionally, the Veteran testified that, due solely to his heart disorder, he experiences dizziness, shortness of breath, fatigue, and chest pains. The Veteran further testified that he believed he was not qualified to obtain sedentary work. Here, the Veteran reported that, during his 38 years of working at General Motors, he was not primarily doing physical labor, but rather worked as a union official out of an office-type setting. He further reported that his heart affected his ability to do such job due to experiencing fatigue/tiredness. Upon consideration of the evidence of record and the relevant laws and regulations, the Board finds that a rating in excess of 10 percent for the Veteran's heart disability is not warranted. As noted, a workload of greater than 5 METs but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is required for a higher 30 percent evaluation under DC 7006. In this regard, the VA examination reports dated in August 2011, October 2012, and May 2016, and the March 2013 private DBQ revealed no evidence of cardiac hypertrophy or dilatation, or chronic congestive heart failure. Additionally, the Veteran's left ventricular ejection fraction was, at worst, 55 percent as noted in the March 2013 private DBQ. The Board acknowledges that the VA examination reports dated in August 2011, October 2012, and May 2016, and the March 2013 private DBQ indicated an estimated workload level greater than 5 METs but not greater than 7 METs, based on an interview of the Veteran. However, the August 2011 VA examiner noted that the Veteran's ejection fraction was the better estimate of his cardiac status as his METs level at maximum exercise was confounded by other medical disorders, specifically his deconditioning. Similarly, the October 2012 VA examiner noted that the Veteran's estimated METs level was confounded by his other comorbid medical disorders, including cervical spine degenerative disc disease status post recent surgery, and, as such, his cardiac status was better indicated by his ejection fraction, which was normal. As such examiners considered the totality of the Veteran's condition, and offered a rationale for their determinations as to the effect of comorbid conditions on his METs limitations, the Board accords such opinions great probative weight. Id. The Board notes that the May 2016 VA examiner noted that the Veteran's limitation in METs level was due to multiple medical disorders, including his heart disorder, and it was not possible to accurately estimate the percent of METs limitation attributable to each medical disorder. Specifically, the VA examiner stated that the Veteran's estimated METs level was confounded by his other comorbid medical disorders, including obesity, PTSD/depression, chronic headaches, cervical spine degenerative disc disease status post cervical disc fusion, and lumbosacral degenerative disc disease status post lumbar laminectomy, and all of such disorders combined led to a decreased exercise tolerance. In this regard, the Court has held that when a veteran has both service-connected and nonservice-connected disabilities, VA must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). However, the remainder of the probative evidence of record, to include the aforementioned VA examination reports, expressly found that the Veteran's limitation in his METs level was as a result of conditions other than his IHD. Therefore, the Board finds that the evidence as a whole clearly delineates the effects of the Veteran's IHD from his other conditions. Moreover, as noted previously, while the March 2013 and May 2013 records from Dr. V.P. reflect a workload level greater than 5 METs but not greater than 7 METs, he did not indicate which disabilities contributed to such limitations in March 2013, and did not provide rationale for attributing such limitations to the Veteran's heart disability or address the impact that his comorbid conditions have on his METs level in May 2013. Consequently, the Board places no probative weight on such determinations. Therefore, as the most probative evidence reflects that, as the Veteran's limitation in METs level was due to conditions other than his IHD, the August 2011 and October 2012 VA examiners found that his left ventricular ejection fraction was the better estimate of his cardiac status. In this regard, the August 2011, October 2012, and May 2016 VA examination reports revealed a left ventricular ejection fraction of 57 percent; the July 2011 VA treatment record revealed a left ventricular ejection fraction of 57 percent; the March 2013 private DBQ revealed a left ventricular ejection fraction of 55 percent; the May 2013 private treatment record revealed a normal left ventricular ejection fraction; and Dr. V.P.'s June 2017 letter revealed a left ventricular ejection fraction of 63 percent, and noted that the Veteran's IHD was stable. Such findings are consistent with a rating of 10 percent under DC 7006 since a left ventricular ejection fraction must be between 30 and 50 percent to warrant a 30 percent rating. Therefore, based on the totality of the relevant competent evidence, the Board finds that the criteria for a rating in excess of 10 percent have not been met or approximated at any point during the appeal period. In making its determination in this case, the Board acknowledges the Veteran's and his representatives' belief that his heart symptoms are more severe than the current disability rating reflects, and that his current METs limitations are attributable solely to his IHD. While the Board recognizes that the Veteran and his representatives are competent to provide statements regarding his observable symptomatology, they are not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria, or render a medical determination as to which of the Veteran's conditions contribute to his METs limitations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his and his representatives' own reports regarding the severity of such condition. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected heart disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representatives have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (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). In sum, the Board finds that an evaluation in excess of 10 percent for the Veteran's IHD is not warranted. In denying a higher rating, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER The appeal pertaining to the issue of entitlement to service connection for hypertension is dismissed. A rating in excess of 10 percent for IHD is denied. REMAND As noted in the Introduction, a TDIU claim has been raised by the Veteran in connection with his claim for an increased rating for IHD. However, such claim has not yet been developed or adjudicated by the AOJ in the first instance. Therefore, a remand is necessary to do so. In this regard, the AOJ should conduct all appropriate development, to include providing the Veteran with a notice as to the information and evidence necessary to substantiate a TDIU claim and requesting that he complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), and adjudicate such claim in the first instance. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper notice that informs him of the evidence and information necessary to substantiate a claim of entitlement to TDIU. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for a TDIU should be adjudicated by the AOJ based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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 (West 2012). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs