Citation Nr: 18151161 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 12-07 769 DATE: November 19, 2018 ORDER For the rating period from January 29, 2009 through December 1, 2013, a rating in excess of 30 percent for coronary artery disease (CAD) is denied. For the rating period from December 2, 2013 to June 26, 2017, a 100 percent rating for CAD is granted. A total disability rating based on individual unemployability (TDIU) prior to December 2, 2013 is denied. FINDINGS OF FACT 1. For the rating period from January 29, 2009 through December 1, 2013, the Veteran’s ischemic coronary artery disease approximated symptoms of a workload greater than 5 METs (metabolic equivalents) but not greater than 7 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram (EKG), or x-ray. 2. The Veteran’s CAD disability increased in severity as of December 2, 2013 and more nearly approximated a workload of 3 METs or less results in dyspnea, fatigue, angina, and dizziness. 3. The Veteran is already in receipt of a 100 percent rating for CAD beginning June 27, 2017. 4. For the rating period prior to December 2, 2013, the Veteran did not meet the schedular criteria for a TDIU and a referral of TDIU to the Director of Compensation Service for extraschedular consideration is not warranted. CONCLUSIONS OF LAW 1. For the rating period from January 29, 2009 through December 1, 2013, the criteria for a rating in excess of 30 percent for CAD are not met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). 2. For the rating period from December 2, 2013 to June 26, 2017, the criteria for a 100 percent rating for CAD are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2017). 3. For the rating period prior to December 2, 2013, the criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1965 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that in a May 2009 rating decision, the Veteran was initially granted service connection for hypertensive cardiovascular disease effective January 29, 2009. The RO reopened and reviewed the Veteran’s claim due to regulatory changes governing presumptive service connection for herbicide exposure. See Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999); and, Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002). Based on a diagnosis identified in a May 2010 VA examination, the RO changed the Veteran’s service-connected disability to ischemic coronary artery disease in the October 2010 rating decision. Additionally, the issues on appeal have been expanded to include TDIU. While the Veteran did not appeal the March 2013 denial of entitlement to a TDIU, the Board has jurisdiction under Rice v. Shinseki, 22 Vet. App. 447 (2009), as part of the claim the underlying disability. The fact that the Veteran filed a claim for TDIU due in part to service-connected ischemic coronary artery disease raises the issue. CAD Rating—Laws and Analysis Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation 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,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Under Diagnostic Code 7005 for coronary artery disease, a 30 percent rating is assigned for a workload of greater than 5 METs (metabolic equivalents) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram (EKG), or x-ray. A 60 percent rating is assigned for myocardial infarction with 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 maximum 100 percent rating is assigned for 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. See 38 C.F.R. § 4.104, DC 7005 (2017). The Veteran is currently in receipt of a 100 percent rating for his CAD disability beginning June 27, 2017. The Veteran contends that a higher evaluation is warranted for his CAD disability prior to June 27, 2017. The Veteran’s coronary artery disease is rated pursuant to Diagnostic Code 7005, with a 30 percent rating from January 29, 2009, and 100 percent rating from June 26, 2017. The evidence includes a May 2009 VA examination where the Veteran was diagnosed with hypertensive cardiovascular disease. His METs assessment was 7.0, and there was no evidence of congestive heart failure. VA medical records from February 2010 show the Veteran underwent a nuclear stress test that revealed a small area of ischemia, and his left ventricular ejection fraction (LVEF) was 52 percent. Later that month the Veteran reported a decrease in exercise tolerance. The Veteran was afforded another VA examination in May 2010. The VA examiner diagnosed ischemic coronary artery disease. Upon examination, the Veteran was noted to have regular heart rate and rhythm, without murmurs, clicks, or rubs. The Veteran’s METs test result was 5.7. At a March 2012 VA examination, the examiner noted that the Veteran’s coronary artery disease qualified within the generally accepted medical definition of ischemic heart disease. Upon examination, the Veteran’s METs test results were greater than 5 METs but less than 7 METs. VA treatment records dated on December 2, 2013 show that the Veteran’s medication for his CAD disability was increased to 40 mg. The Board finds that this is the first objective indication of an increase in severity of the Veteran’s disability. The Board finds that a rating in excess of 30 percent for the period prior to December 2, 2013 is not warranted. In this regard, the Veteran’s METs test results were, at worst, greater than 5 and less than 7 METs, his LVEF was above 50 percent, and he was never noted to have congestive heart failure. The claims file does not contain any additional VA or private medical records dated prior to December 2, 2013 that indicate the Veteran meets the criteria for a disability rating higher than 30 percent. Therefore, the claim for a rating in excess of 30 percent for ischemic coronary artery disease is denied for the rating period prior to December 2, 2013. The Board finds, however, that a 100 percent rating is warranted for the period beginning December 2, 2013 (the first objective medical evidence showing an increase in severity of the CAD disability) to June 26, 2017 (the day prior to the award of a 100 percent rating). In this regard, a June 2017 VA examination indicated that the Veteran had a workload of 3 METs or less results in dyspnea, fatigue, angina, and dizziness. It was further noted that the Veteran used lisinopril medication (40mg) to treat his heart condition. As noted above, the Veteran’s increase in lisinopril occurred on December 2, 2013. The Board also finds it unlikely that the Veteran’s CAD suddenly worsened on the day of the June 2017 VA examination, particularly in light of his increase in mediation more than 3 years prior. For these reasons, the Board finds that a 100 percent rating for the CAD disability is warranted for the period from December 2, 2013 to June 26, 2017. The Veteran is already in receipt of a 100 percent evaluation beginning June 27, 2017; as such, no further consideration is warranted. TDIU Prior to December 2, 2013 The Veteran contends he is entitled to a TDIU because his psychiatric disorder, coronary artery disease, and diabetes mellitus prevent him from working. He reported having a high school education, and that his disabilities caused him to leave his last full-time job in December 2008. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice, 22 Vet. App. at 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Pursuant to the decision herein, prior to December 2, 2013, the Veteran was in receipt of a combined rating of 60 percent based on the following service-connected disabilities: CAD rated at 30 percent; anxiety disorder, rated at 30 percent; diabetes mellitus rated at 20 percent; erectile dysfunction rated at zero percent; and scar residuals from coronary artery bypass graft rated at zero percent. Accordingly, the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) were not met prior to December 2, 2013. As such, entitlement to a schedular TDIU is not warranted. In addition, the Board finds that referral for extraschedular consideration of a TDIU is not warranted for the rating period prior to December 2, 2013. VA medical records from December 2008 show the Veteran reported being forced into retirement, and that he found part-time employment at a retail business. In January 2009, the Veteran stated his health and medical conditions prevent him from securing and maintaining a job. At VA examinations in May and June of 2009, the Veteran reported he retired in 2006. He did not indicate that he retired due to his service-connected disabilities. At a mental health VA examination in September 2009, the Veteran reported that he was forced into retirement. He also stated he had some problems with anger at work, but was never formally reprimanded. The Veteran attended a May 2010 VA examination, and reported retiring in 2008. At a mental health VA examination in March 2012, the Veteran stated he was unable to find steady employment since 2008, and the examiner noted the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran did not indicate that he retired or could not find employment due to his service-connected disabilities. In March 2012, the Veteran was afforded a VA examination to assess his employability. The Veteran reported that he resigned from his job under threats of being terminated. The examiner concluded the Veteran’s heart condition, diabetes mellitus, and erectile dysfunction did not render him unemployable. A VA examiner determined in February 2013 that the Veteran’s psychiatric disorder did not render him unable to secure and maintain substantially gainful employment. Lastly, at a VA examination in June 2017, the examiner concluded that the Veteran’s heart condition impacted his ability to work by causing him to become tired and to experience shortness of breath with exertion. Accordingly, while the Board recognizes that the Veteran’s service-connected disabilities may impact his ability to do certain types of work, the evidence does not show that he is precluded from obtaining and maintaining any substantially gainful employment. No VA examiner has found the Veteran is precluded from work due to his disabilities, and the Veteran has provided inconsistent statements about why he no longer works. To the extent that his service-connected disabilities affect his employability, the schedular ratings assigned for his various disabilities compensate him for such impairment, and referral for extraschedular consideration of a TDIU rating is not warranted. 38 C.F.R. § 4.16(b). In sum, the Veteran does not meet the schedular requirements for a TDIU prior to December 2, 2013, and referral is not appropriate in this case. As it pertains to the rating period beginning December 2, 2013, the Board notes that the Court held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for Special Monthly Compensation (SMC) under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate). See 38 U.S.C. § 1114 (s). Thus, Bradley made it such that even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. The Board has considered whether the Veteran is entitled to SMC based on his need for aid and attendance for the rating period beginning December 2, 2013. However, SMC is warranted if a veteran has a service-connected disability rated as total and has additional service-connected disabilities independently rated as 60 percent or more, or by reason of such service-connected disabilities is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). In the present case, while the Veteran does have a service-connected disability rated at 100 percent (CAD beginning December 2, 2013), he does not have additional service-connected disabilities rated at 60 percent or more (as his only other service-connected disabilities, anxiety disorder, diabetes, and erectile dysfunction) are rated a combined 40 percent. Accordingly, the Board finds that SMC is not warranted based upon a 100 percent plus a 60 percent or higher rating for a disability independent of his CAD disability under 38 U.S.C. § 1114 (s). Therefore, no further discussion regarding these issue is warranted. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Miller, Associate Counsel