Citation Nr: 1804305 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 14-08 716 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUES 1. Entitlement to an initial rating in excess of 60 percent for ischemic heart disease prior to July 9, 2015. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to ischemic heart disease prior to July 9, 2015. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wilmington, Delaware. In December 2015, the Board remanded the current issues to afford the Veteran the opportunity to submit a TDIU application (VA Form 21-8940); to afford him the opportunity to submit, or authorize VA to obtain, records of the private treatment he has received for his ischemic heart disease; and to afford him an additional VA examination. The Board finds that there has been substantial compliance with those prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In December 2016, the RO increased the disability rating for the Veteran's ischemic heart disease to 100 percent disabling effective July 9, 2015-a full grant of the benefit sought from that date, forward. Accordingly, the portion of that claim that remains on appeal is entitlement to an initial rating in excess of 60 percent for ischemic heart disease prior to July 9, 2015. The grant of a schedular 100 percent disability rating for ischemic heart disease also rendered the issue of entitlement to a TDIU due to that disability moot from July 9, 2015, forward. However, the issue of entitlement to a TDIU is part of the Veteran's appeal of the initial rating assigned for his ischemic heart disease, because he raised the issue of unemployability during the course of that appeal. Rice v. Shinseki, 22 Vet. App. 447, 453. As a result, a claim for a TDIU has been pending since the Veteran appealed the initial rating assigned for his ischemic heart disease, and the issue of entitlement to a TDIU due to that disability for the period prior to July 9, 2015-the date on which a TDIU due to that disability was rendered moot by the grant of a 100 percent disability for ischemic heart disease-remains before the Board. The Board acknowledges that, in March 2016, the Veteran filed a notice of disagreement (NOD) with various determinations made by the RO in a January 2016 rating decision. Although the Board is cognizant of the decision reached by the United States Court of Appeals for Veterans Claims in Manlincon v. West, 12 Vet. App. 238 (1999), in this case, unlike in Manlincon, the RO has fully acknowledged that NOD and appears to be in the process of adjudicating the appeal. As action by the Board may serve to delay the RO's progress, no such action will be taken at this time, and the issues appealed by the Veteran in March 2016 will be the subject of a later Board decision, if ultimately necessary. FINDINGS OF FACT 1. Prior to July 9, 2015, the Veteran's ischemic heart disease was not manifested by a workload of 3 metabolic equivalents (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; nor was it manifested by chronic congestive heart failure or a left ventricular ejection fraction (LVEF) of less 30 percent. 2. Prior to July 9, 2015, resolving all doubt in the Veteran's favor, the competent and credible evidence of record demonstrates that his service-connected ischemic heart disease precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to July 9, 2015, the criteria for an initial rating in excess of 60 percent for ischemic heart disease were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). 2. Prior to July 9, 2015, the criteria for a TDIU were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As was explained in the Introduction to this decision, the Veteran is currently in receipt of a 60 percent disability rating for ischemic heart disease prior to July 9, 2015, and a 100 percent rating for that disability thereafter. He has asserted that his symptoms prior to July 9, 2015, entitle him to a 100 percent disability rating during that period, as well. He has also asserted that his ischemic heart disease prevented him from securing or following a substantially gainful occupation prior to July 9, 2015. As will be explained below, the Board does not find that a 100 percent disability rating is warranted for ischemic heart disease prior to July 9, 2015, but it does find that the Veteran is entitled to a TDIU. I. 100 Percent Rating for Ischemic Heart Disease Prior to July 9, 2015 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). As this appeal is from the initial disability rating assigned upon an award of service connection, the entire body of evidence is for consideration. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's ischemic heart disease is rated under Diagnostic Code 7005. See 38 C.F.R. § 4.104 (2017). That code provides, in pertinent part, that a rating of 60 percent is assigned for documented coronary artery disease resulting in more than one episode of acute, congestive heart failure in the past year, or; if a workload of greater than 3 metabolic equivalents (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, or; if a 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 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. The Board finds that a 100 percent rating for ischemic heart disease is not warranted at any point prior to July 9, 2015, as the evidence does not support finding that the Veteran had chronic congestive heart failure or an LVEF of less than 30 percent, or that he was generally experiencing dyspnea, fatigue, angina, dizziness, or syncope due to a workload of 3 METs or less. In that regard, reports associated with VA examinations conducted in April 2007, March 2012, and October 2014 document an LVEF of 52 percent and a METs value of 3 to 5, at worst, and do not document chronic congestive heart failure. The Veteran's LVEF was also consistently reported to be greater than 50 percent during VA treatment, including in December 2010, March 2011, and June 2013. Moreover, although the Veteran has described dyspnea after varying amounts of exertion and, less frequently, chest pain, ankle swelling, or lightheadedness, the Board finds that the record, viewed as a whole, supports the VA examiners' conclusions regarding the workload at which the Veteran typically experienced such symptoms during the relevant time period. For example, the Veteran reported shortness of breath during VA treatment in March 2007, but the results of a stress test were normal. During a nutrition consultation in October 2008, he reported walking three miles at least four times per week and maintaining a six-acre garden. In August 2009, the Veteran's coronary artery disease was described as asymptomatic, and it was noted that he did not have ankle swelling. During VA treatment in November 2011, the Veteran's coronary artery disease was again described as asymptomatic, and he reported exercising daily by walking one to two miles. Asymptomatic coronary artery disease was also reported during VA treatment in September 2012. During a routine VA follow-up appointment in September 2013, a clinician noted that the Veteran had undergone a cardiac catheterization in July 2013 to evaluate his stents, rather than as a result of anginal symptoms, and that the catheterization revealed "clean coronaries." He further noted that the Veteran underwent surgery to repair an incidental finding of an aortal aneurysm that month, and that the Veteran indicated he had recently been cleared for full activity following that surgery and would, therefore, be returning to working out a few days per week. The Veteran denied chest pain and shortness of breath at that time. During VA treatment in August 2014, the Veteran reported dyspnea with moderate exertion that began after walking half a block, but indicated that he exercised daily. The clinician stated that the Veteran had no current angina symptoms. The Board acknowledges that the evidence also includes several treatment records that document more severe symptoms than those detailed above. However, the Board finds that, viewed in the context of the evidence as a whole, those isolated periods of increased symptoms do not warrant staged ratings in excess of 60 percent at any point. In that regard, VA treatment records include a September 2008 fax from the Veteran's wife stating that he was "filling up with fluid;" had chest pain; had to stop to rest four times while slowly walking three blocks; and was essentially experiencing symptoms similar to those he had experienced prior to undergoing coronary stenting in 2006. However, although the clinician who reviewed the fax left a telephone message instructing the Veteran's wife to contact the Veteran's private cardiologist or seek immediate treatment for emergent symptoms and noted that she would await a return call or visit, the contents of the fax were not discussed during a VA follow-up visit in October 2008. Moreover, as was already noted, the Veteran reported walking three miles several times per week, as well as gardening, at that time. In December 2010, the Veteran reported lightheadedness with exertion such as cleaning the house for five minutes and, in January 2011, he described an exercise tolerance of about two city blocks and occasional chest pressure with exertion. However, an echocardiogram conducted in December 2010 was described as "fairly acceptable" with "no important abnormalities," and the Veteran's heart symptoms were addressed in January 2011 by reducing his Metoprolol dosage. Notably, a pulmonary function test that was also conducted in December 2010 revealed findings consistent with emphysema, and the January 2011 VA treatment note included diagnoses of both coronary artery disease and chronic obstructive pulmonary disease (COPD) and reported initiation of medication to treat COPD. In March 2011, the Veteran was hospitalized overnight at a private facility after he presented with complaints of chest pain and dizziness. However, he indicated that he had been "feeling okay" until he began experiencing those symptoms the day prior. He noted that he had been tracking his heart rate and that it was lower than usual in spite of having decreased his Metoprolol. The examining clinician's assessment included a known history of coronary artery disease and bradycardia. She stated that the Veteran would be observed for 24 hours; that acute coronary syndrome would be ruled out and a stress test conducted if serial cardiac markers were negative; and that Metoprolol would be held in light of the bradycardia. The discharge summary completed the following day included final diagnoses of chest pain, coronary artery disease, prior stent placement, bradycardia, hypertension, and hyperlipidemia. The physician who completed it noted that the Veteran's Metoprolol had been discontinued secondary to severe bradycardia; that an echocardiogram showed normal left ventricular size and systolic function and an LVEF of 60 to 65 percent; that a Persantine stress study showed a moderate-to-severe defect in the base of the inferior wall, unchanged from stress to rest and consistent with a small area of scar; and that the Veteran had remained chest pain-free during his hospital stay. He explained that the Veteran's Metoprolol would be resumed at a reduced dosage and that further monitoring of his heart rate would be conducted on an outpatient basis. During VA treatment in April 2011, a clinician noted a March 2011 hospitalization due to chest pain, bradycardia, and possible dehydration, but stated that the Veteran now indicated feeling fine, without chest pain or dizziness. The clinician reported an impression of bradycardia, status post hospital admission in March 2011, stable on decreased Metoprolol. In short, the Board finds that the medical evidence of record and the symptoms the Veteran reported to care providers suggest that any periods during which he experienced more severe symptoms during certain activities were brief and resolved following adjustment of his medication. That evidence, coupled with the other evidence of record that is close in time to those incidents and documents less severe symptoms, does not support a finding that a 100 percent disability rating was more closely approximated or would be representative of his general impairment at any point. In reaching its conclusion regarding the most appropriate disability rating or ratings for ischemic heart disease prior to July 9, 2015, the Board also acknowledges that several clinicians who have submitted opinions in support of this claim have referenced a METs value of 1.0 that is included in the report associated with the Veteran's March 2011 stress test, and that the Veteran's counsel has asserted that such a finding is consistent with a 100 percent disability. However, although the report states that the Veteran was stressed for 7:00 according to Persantine protocol and achieved "a work level of Max. METS: 1.00," the final report provided by the interpreting cardiologist states that there were no symptoms with Persantine infusion; that the calculated LVEF was >70%; and that the stress test was normal. In other words, it appears, when the finding is considered in the context of the entire report rather than in isolation, that it was related to testing protocol rather than to the point at which heart-related symptoms were elicited. The Board also acknowledges correspondence submitted by a private physician in July 2015 and November 2017, in which the physician asserted that the Veteran's heart symptoms, coupled with the additional symptoms caused by his heart medication, warranted a 100 percent rating. Specifically, in the July 2015 correspondence, the physician explained that the interview-based METs testing of record, which demonstrated results consistent with such activities as light yard work, mowing the lawn, and brisk walking, did not account for the additional effects of the Veteran's heart medication. However, the physician did not explain how those additional effects could have been excluded during an interview-based test, which, presumably, was based on the Veteran's description of all of the subjective symptoms he typically experienced at different workloads-not on a description of only those symptoms he believed were caused directly by his underlying heart disease. Finally, the Board has considered the November 2017 statements submitted by the Veteran's significant other, step-daughter, and a good friend, all of whom reported knowing him for part or all of the period in question and witnessing the symptoms that occurred when he attempted to perform certain activities, including gardening, climbing stairs, walking, or holding a conversation. The Board acknowledges that those individuals are competent to report their own observations with regard the Veteran's symptoms during various activities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, those statements must be weighed against the other evidence of record. Here, the Board finds that the conclusions of the trained health professionals who evaluated the Veteran, as well the Veteran's own descriptions of his symptoms during the relevant time period, are of greater probative weight than are lay assertions that were more recently submitted on his behalf and are more general in nature. In short, when the available evidence regarding the symptoms of the Veteran's ischemic heart disease prior to July 9, 2015, is reconciled into a consistent picture, that evidence does not support a finding that a 100 percent disability rating is more closely approximated at any point. As a result, a higher initial rating for ischemic heart disease prior to July 9, 2015, is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine; but, because the preponderance of the evidence is against the claim, it is inapplicable. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). II. Entitlement to a TDIU prior to July 9, 2015 Although the Board does not find that the Veteran is entitled to a 100 percent disability rating for ischemic heart disease prior to July 9, 2015, it does find that resolution of reasonable doubt in his favor warrants granting a TDIU. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of one disability that is rated at least 60 percent disabling. 38 C.F.R. § 4.16(a). As the Veteran's ischemic heart disease is rated as 60 percent disabling prior to July 9, 2015, it meets the percentage requirement during the time period in question. The remaining question, then, is whether his ischemic heart disease also precluded him from securing and following a substantially gainful occupation during that time period. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Board finds that it did. The fact that a Veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a Veteran could find employment. Id. Consideration may be given to a Veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Turning to the relevant evidence, although the Veteran has not, to date, submitted a VA Form 21-8940 as requested, he detailed his education and work history during unrelated VA treatment in October 2013. Specifically, he reported completing one year of college, working as a heavy equipment operator until 2002, and then working for four years in international catering with an airline. The Veteran explained that he took an early retirement in 2006 because he was coping with a number of medical issues-described as two heart attacks, stent procedures, and neuropathy-that he reported had severely limited his ability to be active at times. Multiple opinions regarding the impact the Veteran's ischemic heart disease has on his ability to work are also of record. In that regard, in March 2012 and October 2014, two different VA examiners reached opposing conclusions regarding whether the Veteran's heart disease impacted his ability to work. However, they did not explain the bases for those conclusions. In September 2016, a VA examiner concluded that the Veteran's heart disease affected his ability to function in an occupational environment by causing significant difficulty with prolonged standing and ambulation due to dyspnea on exertion. He also noted that the Veteran was unable to stand for more than 10 minutes or walk more than 200 feet without great difficulty and effort. Three private opinions addressing the impact of the Veteran's heart disease on his ability to work are also of record. Specifically, in July 2015, a private physician concluded that the limitations caused by the Veteran's heart disease and the medication used to treat it would preclude him from obtaining and/or maintaining substantially gainful employment. The physician described effects that included walking limited to 200 feet; sitting or standing limited to 10 minutes before having to reposition; and decreased concentration related to fatigue and drowsiness and caused by his heart condition and the medication used to treat it. He also asserted that the combined limitations caused by the effects of the Veteran's heart symptoms and heart medication-particularly drowsiness related to fatigue and dyspnea-would prevent him from staying focused for eight hours per day and would require frequent unscheduled breaks throughout the day and several absences a month. In September 2017, a private vocational evaluator reviewed the Veteran's claims file; reiterated much of the evidence discussed by the physician who issued the July 2015 opinion; cited research supporting the absence rates typically tolerated by employers; and concluded that the functional limitations that have been linked to the Veteran's heart condition had precluded him from working throughout the claim period. In November 2017, the same physician who issued the July 2015 opinion further discussed the functional limitations caused by the Veteran's heart condition and the medication used to treat it and clarified that he believed that condition had rendered the Veteran unemployable since at least January 10, 2007. The Board again notes that some of the additional symptomatology caused by the Veteran's heart medication occurred on isolated occasions and, per the reports of clinicians and the Veteran, resolved following adjustment of that medication. It further notes that some of the evidence of record, including medical treatment notes during the time period in question and a note included by the Veteran's private cardiologist on a May 2017 Residual Functional Capacity Evaluation, suggests that his functional limitations prior to July 9, 2015 may have been caused, in part, by nonservice-connected COPD. Nevertheless, in light of the positive opinions discussed above, as well as the Veteran's education and work experience, the Board finds that the competent and credible evidence is at least evenly balanced regarding the question of whether his ischemic heart disease rendered him incapable of performing the physical and mental acts required to be employed during that time period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in the Veteran's favor, entitlement to a TDIU due to ischemic heart disease prior to July 9, 2015, is warranted. 38 U.S.C. § 5107(b). ORDER Prior to July 9, 2015, an initial rating in excess of 60 percent for ischemic heart disease is denied. From January 10, 2007, to July 8, 2015, a TDIU due to service-connected ischemic heart disease is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs