Citation Nr: 18144628 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-21 786 DATE: October 25, 2018 ORDER Prior to September 19, 2011, a 30 percent rating, but no higher, for service-connected coronary artery disease (CAD), is granted, subject to the laws and regulations governing monetary awards. From September 19, 2011 to June 28, 2013, a 60 percent rating, but no higher, for CAD is granted, subject to the laws and regulations governing monetary awards. REMANDED The issue of entitlement to a TDIU prior to June 28, 2013 is remanded. FINDINGS OF FACT 1. Prior to September 19, 2011, the Veteran’s CAD manifested with substantiated anginal attacks with ordinary manual labor feasible; but without a history of acute coronary occlusion, thrombosis, or congestive heart failure; and not with METs of 5 or less resulting in symptoms of dyspnea, fatigue, angina, dizziness, or syncope; or an ejection fraction of 50 percent or less. 2. From September 19, 2011 to June 28, 2013, the Veteran’s CAD manifested with an ejection fraction within the range of 30 to 50 percent; but not with a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; congestive heart failure; a history of acute illness from coronary occlusion or thrombosis with circulatory shock; angina on moderate exertion; or more than sedentary employment precluded. CONCLUSIONS OF LAW 1. For the period prior to September 19, 2011, the criteria for an evaluation of 30 percent, but not higher, for CAD were met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.104, Diagnostic Code 7005 (1997); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005 (2017). 2. From September 19, 2011 to June 28, 2013, the criteria for an evaluation of 60 percent, but not higher, for CAD were met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. § 4.104, Diagnostic Code 7005 (1997); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to June 1971 and from February 1973 to August 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision of the Appeals Management Center in Washington, D.C., which granted entitlement to service connection for CAD and assigned a noncompensable rating from September 1, 1989 to November 4, 2010; a 10 percent rating from November 5, 2010 to June 27, 2013; and a 100 percent rating from June 28, 2013. Jurisdiction currently lies with the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran explicitly raised the issue in a July 2018 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), wherein he alleged that he was unemployable due to his service-connected heart disability. In an August 2018 rating decision, the RO found that the issue of entitlement to a TDIU was moot because the Veteran’s service-connected disabilities were evaluated as 100 percent disabling. In the present case, as a 100 percent disability rating for the Veteran’s heart disability has been granted, effective June 28, 2013, the Board concludes that the issue of entitlement to a TDIU since June 28, 2013, is moot, as the Rice TDIU claim before the Board is only with respect to an inability to secure or follow substantially gainful occupation due to the service-connected heart disability. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008); Rice, 22 Vet. App. at 453-54 (2009). However, the claim for a TDIU prior to June 28, 2013, is on appeal as part and parcel of the claim for higher ratings for CAD. In June 2018, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge, a transcript of which is of record. Increased Ratings for CAD The Veteran seeks higher initial ratings for his service-connected CAD. He is currently in receipt of a noncompensable disability rating under Diagnostic Code 7005 for the rating period from September 1, 1989 to November 4, 2010, and a 10 percent rating for the period from November 5, 2010 to June 27, 2013. He was awarded a 100 percent rating effective from June 28, 2013. A. Legal Criteria Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The regulations for rating heart disease were revised effective January 12, 1998, which was during the pendency of this appeal. See 62 Fed. Reg. 65,207-65,224 (Dec. 11, 1997). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Here, the Veteran’s claim for an increased rating stems from disagreement with the initial ratings assigned, effective from September 1, 1989, prior to the regulation change. As such, the Veteran’s claim must be considered under both sets of criteria for the entire period on appeal, although the new rating criteria are applicable only since their effective date of January 12, 1998. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Prior to January 12, 1998, Diagnostic Code 7005 provided a 30 percent evaluation for a veteran for whom, following a typical coronary occlusion or thrombosis or with a history of substantiated anginal attack, ordinary manual labor was feasible; a 60 percent evaluation was provided for a veteran for whom, following a typical history of acute coronary occlusion or thrombosis, or with a history of substantiated repeated anginal attacks, more than light manual labor was not feasible; and a 100 percent evaluation was provided during and for six months following acute illness from coronary occlusion or thrombosis with circulatory shock, and after six months, with chronic residual findings of congestive heart failure or angina on moderate exertion or if more than sedentary employment is precluded. 38 C.F.R. § 4.104, Diagnostic Code 7005 (effective prior to January 12, 1998). The current version of Diagnostic Code 7005, effective from January 12, 1998, provides that a 10 percent evaluation is assigned for a workload of greater than 7 METs but not greater than 10 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent evaluation is assigned for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted when there is more than one episode of congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating contemplates documented coronary artery disease resulting in 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. 38 C.F.R. § 4.104, DC 7005. One MET (metabolic equivalent) is defined as 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 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). B. Factual Background Turning to the evidence of record, during his June 1989 retirement examination, the Veteran reported a history of heart trouble and atypical chest pain. A chest x-ray was normal. An ECG showed sinus bradycardia, but was otherwise normal. During a November 1989 VA examination, the Veteran reported that he had a minor heart attack in 1971. He denied any chest pain for the past three to four years. He also denied shortness of breath and pedal edema. On examination, the Veteran’s heart sounds were regular in rate and rhythm, with normal S1 and S2 and no murmurs appreciated. An ECG was normal. The examiner indicated that there was insufficient clinical evidence to warrant a diagnosis of any acute or chronic heart disorder or residuals thereof. A June 1997 private treatment record shows that the Veteran reported being evaluated in 1992 for chest pain. He indicated that he had an echocardiogram, a stress test, and a full pulmonary work up, all of which were within normal limits and culminated with a diagnosis that his chest pain was noncardiac. On examination, the Veteran’s heart sounds were regular, but with I/VI decrescendo murmur. A May 2008 private treatment record shows that the Veteran reported some dyspnea on exertion, but he denied chest pain. A November 2008 private treatment record shows that the Veteran denied chest pain and shortness of breath. A February 2010 private treatment record shows that the Veteran denied chest pain, pressure, or palpitations. He complained of shortness of breath with exertion, slightly worse lately, and it was noted that the Veteran’s CAD was stable by history and exam. A November 2010 Ischemic Heart Disease Disability Benefits Questionnaire (DBQ) completed by the Veteran’s private physician shows that the Veteran had been diagnosed with CAD. There was no evidence of congestive heart failure or cardiac hypertrophy or dilation. An interview-based METs test showed that the Veteran experienced dyspnea at a workload of greater than seven but less than ten METs. A September 2011 VA cardiac procedure revealed a left ventricular ejection fraction of 48 percent with no focal wall motion abnormality. An October 2011 exercise stress test revealed peak oxygen consumption of 9.7 METs, and the Veteran was classified as New York Heart Association (NYHA) functional class I, which reflects METs capacity of greater than six. It was noted that the results showed a “negative stress test.” A June 2012 VA primary care note shows that the Veteran denied chest pain or shortness of breath even with activity such as swimming and yard work. In a June 2015 statement, the Veteran’s wife reported that the Veteran was treated for a minor heart attack in January 1990 at Fort Carson. C. Analysis Having carefully considered the Veteran’s contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a 30 percent rating were met prior to September 19, 2011. In this regard, prior to September 19, 2011, the Veteran’s CAD manifested as substantiated anginal attack with ordinary manual labor feasible. However, the Board finds that the criteria for a rating in excess of 30 percent were not met prior to September 19, 2011. Regarding the rating criteria in effect prior to January 12, 1998, the record does not show a history of substantiated repeated anginal attacks, more than light manual labor not feasible. In this regard, although the evidence shows that the Veteran was treated for a mild heart attack in 1990, subsequent evidence reflects that the Veteran routinely denied chest pain except in 1992 when an evaluation showed noncardiac chest pain. See June 1997 Private Treatment Record; May 2008 Private Treatment Record; November 2008 Private Treatment Record; February 2010 Private Treatment Record. Moreover, the record prior to September 19, 2011 does not show that more than light manual labor was not feasible. The Veteran reported in a July 2018 VA Form 21-8940 that he worked for the Department of Transportation until June 2011. Moreover, he testified during the June 2018 hearing that his duties at the Department of Transportation were physically demanding. Finally, as late as June 2012, the Veteran denied chest pain or shortness of breath even with activity such as swimming and yard work. See June 2012 VA Treatment Record. Nor is a higher rating warranted under the revised rating criteria. There is no evidence of congestive heart failure at any time during the appeal period. Additionally, the evidence prior to September 19, 2011 does not reflect a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. As discussed above, a November 2010 interview-based METs test revealed dyspnea at a METs level of 7-10, and an October 2011 exercise stress test showed a METs level of 9.2. The Board finds that the criteria for a 60 percent rating were met as of September 19, 2011, the date that cardiac testing showed a LVEF of 48 percent. The Board further finds, however, that a rating higher than 60 percent is not warranted prior to June 28, 2013, when the Veteran was granted a 100 percent rating for his service-connected CAD. Under the previous rating criteria, a 100 percent rating required congestive heart failure or angina on moderate exertion or if more than sedentary employment is precluded. Under the revised rating criteria, in order to warrant a disability rating of 100 percent, the Veteran must manifest chronic congestive heart failure, a workload of three METs or less, or an ejection fraction of 30 percent or less. As noted above, there is no evidence of congestive heart failure at any time during the appeal period. Additionally, prior to June 28, 2013, the record does not reflect angina on moderate exertion or more than sedentary employment is precluded. As discussed above, in June 2012, the Veteran denied chest pain or shortness of breath even with activity such as swimming and yard work. Nor does the record show a workload of three METs or loss or an ejection fraction of 30 percent or less prior to June 28, 2013. Therefore, and resolving reasonable doubt in favor of the Veteran, the Board concludes that a rating of 30 percent is warranted prior to September 19, 2011, and a rating of 60 percent is warranted from September 19, 2011 to June 28, 2013, for the Veteran’s service connected CAD. As the preponderance of the evidence is against an even higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3. REASONS FOR REMAND As noted, the issue of entitlement to a TDIU prior to June 28, 2013, is before the Board as part and parcel of the Veteran’s higher rating claim on appeal. In light of the increased ratings granted above, the Board finds that the AOJ should address the matter of entitlement to a TDIU in the first instance, to avoid any prejudice to the Veteran. The matter is REMANDED for the following action: 1. Send the Veteran proper notice that advises him about what is needed to substantiate a claim for a TDIU. Continue processing the Veteran’s July 2018 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). 2. Following the completion of the foregoing, and any other development deemed necessary, the AOJ should readjudicate the Veteran’s claim of entitlement to a TDIU prior to June 28, 2013. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel