Citation Nr: 18151443 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 18-29 810 DATE: November 19, 2018 ORDER Entitlement to a rating in excess of 30 percent for coronary artery disease (CAD) prior to August 7, 2018 is denied. Entitlement to a compensable rating for scar associated post stent is denied. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to August 7, 2018, the Veteran’s coronary artery disease was manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. 2. The Veteran’s scar associated with stent placement is not deep, unstable or painful, and does not result in functional impairment. 3. The Veteran was not unemployable during the period from March 2, 2017 to August 6, 2018. 4. In light of the award of a total schedular rating for coronary artery disease from January 12, 2017 to March 1, 2017, and from August 7, 2018, the claim for TDIU is moot for those periods. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for coronary artery disease (CAD) prior to August 7, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 2. The criteria for entitlement to a compensable rating for scar associated post stent have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7805. 3. TDIU is denied from date of claim, January 12, 2017. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1951 to October 1955 and from December 1955 to April 1972. In September 2018, the RO granted a 100 percent rating for CAD, effective August 7, 2018. The issue has been recharacterized to reflect this procedural history. In March 2018, the Board remanded the issue of entitlement to service connection for hypertension and the inextricably intertwined issue of entitlement to TDIU for that appeal period. The record reflects the RO is actively working on the appeal. Thus, the Board will not take further jurisdiction of those issues at this time. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. 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 present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where 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 required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In every instance where the rating schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 1. Entitlement to a rating in excess of 30 percent for coronary artery disease (CAD) prior to August 7, 2018 The Veteran’s coronary artery disease is currently evaluated under Diagnostic Code 7005 as 30 percent disabling prior to August 7, 2018. Pursuant to Diagnostic Code 7005, a 30 percent evaluation is warranted when there is a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. A 60 percent evaluation is warranted when there is more than one episode of acute congestive heart failure in the past year, or; 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. A 100 percent evaluation is warranted when there is chronic CHF, or; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran had a pacemaker implanted in December 2016. At a January 2017 follow-up appointment, the Veteran denied chest pain, shortness of breath, palpitations but did complain of dizziness. The medical provider informed the Veteran that he could return to his normal activities, listed as riding the tractor, regular physical activity, and recommended exercising for 20 minutes, 3 times per week. A March 2017 left ventricular ejection fraction test result was 68 percent. At the March 2017 VA examination, the examiner used an interview based METS test and estimated that, based on the Veteran’s statements, that the METS level was from 1 to 3. The Veteran reported dyspnea, fatigue, and angina as symptoms during activity. At an April 2017 medical appointment, the Veteran reported dizziness and stated that he had fallen in February. At an August 3, 2017 appointment, the Veteran reported that he exercised on the stationary bike, going 5 miles, and he also went to the gym, and “feels fine with this” level of exercise. For the period prior to August 7, 2018, the Board finds that the disability picture for the Veteran’s coronary artery disease did not warrant an evaluation in excess of 30 percent. Although on the March 2017 VA examination, the Veteran was evaluated based on his own reporting as having a METS level of 1-3, which corresponds to a higher disability rating, he was evaluated in the same time frame as having a left ventricular ejection fraction of 68 percent, which is not sufficient for a 60 percent evaluation. Medical treatment records from this period of time show that the coronary artery disease did not limit the Veteran from engaging in regular exercise and activities around the house. The disability benefits questionnaire describes the METS level associated with moderate bicycling to be from 7 to 10. The Board appreciates that the Veteran has asserted that his symptomatology approximated a level necessary for a 60 percent or higher rating during the entire period of the appeal. The evidence of record, however, does not support this contention. The Veteran’s reporting of his symptoms is credible. Layno v. Brown, 6 Vet. App. 465 (1994). That being said, there is no evidence in the record which indicates that he possesses the training or credentials to competently state the severity of his heart disease and determine his workload in METs. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). Accordingly, the appeal for a disability rating in excess of 30 percent for coronary artery disease prior to August 8, 2017 is denied. 2. Entitlement to a compensable rating for scar associated post stent The Veteran is currently rated at a noncompensable level for a scar associated with coronary artery disease status post stent under Diagnostic Code 7805. 38 C.F.R. § 4.118. The Veteran was afforded a VA examination in August 2018. The examiner noted the presence of a scar secondary to pacemaker placement, done December 2016. There were no scars or disfigurement of the head, face, or neck. The Veteran’s scar was listed as on the anterior left chest. It was not unstable, painful, or due to burns. The scar measured 6 cm by 0.1 cm. The scar was reported as not resulting in limitation of function. Scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated under Diagnostic Code 7805. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118. Diagnostic Code 7800 pertains to scars of the head, face, or neck, which was not the location of the Veteran’s service-connected scar. Under Diagnostic Code 7801 burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.), warrant a 10 percent rating. Note (1) provides that a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. The Veteran’s scar is not reported as deep. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable. In this case, the Veteran’s scar is not shown to be unstable or painful. Under Diagnostic Code 7805, disabling effects of scars not considered under Diagnostic Codes 7800-7804 may be rated under an appropriate code. However, in this case, the Veteran’s scar does not result in disabling effects. There is no functional impairment of the scars. Therefore, the Board can find no basis for a compensable rating. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a compensable rating for scar associated with status post stent. 3. Entitlement to TDIU from March 2, 2017 to August 6, 2018 The Veteran also seeks TDIU. All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated as totally disabled. 38 C.F.R. § 3.340. Veterans may be awarded TDIU on either a schedular or extraschedular basis. 38 C.F.R. § 4.16. The Board may only grant TDIU, in the first instance, on a schedular basis. In the present case, the Board finds that an award of TDIU is not warranted for the period from March 2, 2017 to August 6, 2018. (The period prior to March 2, 2017 and from August 7, 2018 is discussed below.) TDIU may be assigned 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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, 4 Vet. App. at 363. If a veteran does not meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran is service-connected for coronary artery disease post stent at a 30 percent level from March 1, 2017 to August 6, 2018; prostate cancer status post prostatectomy at 60 percent disability evaluation level; left shoulder separation at 20 percent; tinnitus at 10 percent; supraventricular arrhythmia at 10 percent; and residuals of right finger fracture, right stapendectomy and hearing loss, deflected nasal septum, erectile dysfunction, vasomotor rhinitis, and scar associated with coronary artery disease status post stent, all at a noncompensable level. The total disability rating during this period was 80 percent. Thus, the Veteran met the TDIU percentage thresholds. The Veteran last worked as a vehicle maintenance supervisor in 1995, at which time he retired. He obtained a general equivalency diploma (GED). In October 2017, a vocational expert submitted an assessment and opinion that the Veteran was unable to work due to his service-connected heart, prostate, and left shoulder disabilities. He determined that the Veteran’s heart disability would impact his ability to get to work or remain at work full-time; that his prostate disability would impact his ability to remain at work and be productive; and that left shoulder disability would reduce the ability to reach and exert a negligible amount of force on a regular basis. The vocational expert reviewed the VA medical opinions and disagreed with them, usually relying on the Veteran’s need for frequent restroom breaks and fatigue as a counterargument. He determined that the it was impossible for the Veteran to be a reliable worker, and that he was not capable of sedentary employment. However, the Board finds that the October 2017 vocational expert’s opinion was based on an inaccurate factual premise, i.e., that the Veteran performed primarily physical occupations. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Specifically, while the Veteran has a GED, he reported that his work history included supervising other employees. In this regard, the evidence shows he worked as vehicle maintenance supervisor. See, e.g., January 2008 VA Form 21-4192. Therefore, the evidence reflects that, contrary to the October 2017 vocational expert’s determination, the Veteran served in a position where the duties were not strictly physical. The Board acknowledges the vocational expert’s determination that the Veteran would not have the skills necessary to transfer to sedentary employment. However, the concept of “sedentary employment” is not used in VA regulations. Thus, defining that term is not necessary to adjudicate the claim. Despite the extensive vocational employability assessment, the Board finds the preponderance of the evidence, including multiple VA examinations, continue to support a finding that the Veteran was not unable to secure or maintain substantially gainful employment during this time period. The March 2017 VA examiner suggested that the Veteran’s rhinitis would affect employment in outdoor settings or environments with tough odors. The March 2017 examiner suggested that the Veteran’s ear disability would limit his ability to work in a high-pitched noise environment. The March 2017 examiner suggested that the Veteran’s left shoulder disability would limit the Veteran in employment if required to lift objects above shoulder level. The March 2017 examiner suggested that the Veteran would be limited in performing manual labor due to the residuals of fractured right finger disability. The March 2017 examiner suggested that the Veteran’s residuals of prostate cancer disability would require him to be located near a bathroom due to urinary frequency. The March 2017 examiner suggested that the Veteran’s coronary artery disease would create difficulty in performing high demand physical work or persistent strenuous activity. Although the March 2017 VA cardiac examiner estimated, based on an interview with the Veteran, that the METS level was from 1 to 3, and the Veteran reported dyspnea, fatigue, and angina as symptoms during activity, the Veteran’s activity during this period does not reflect such a level. The METS level of 1 to 3 is described on the disability questionnaire as reflective of activities such as eating, dressing, taking a shower, or slow walking for one to two blocks. At a cardiac appointment one month earlier in February 2017, the cardiologist stated that the Veteran was doing “well overall,” cleared the Veteran to return to normal activities recorded as “riding his tractor, doing all of his regular physical activity and increase his exercise regimen as tolerated.” The examiner also suggested that the Veteran engage in aerobic exercise at least 20 minutes, 3 times per week, or as tolerated. At an August 3, 2017 appointment, the Veteran reported that he exercised on the stationary bike, going 5 miles, and he also went to the gym, and “feels fine with this” level of exercise. At the same appointment, the doctor described the Veteran’s gait as steady and muscle tone and strength as normal. The Board finds that the opinions rendered by the VA examiners regarding the functional effect of the Veteran’s service-connected disabilities on his ordinary activity, to include employment, are entitled to great probative weight. In this regard, the Court and Federal Circuit have held that medical examiners are responsible for providing a full description of the effects of disability upon the person’s ordinary activity. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). In the instant case, the VA examiners each conducted an interview with the Veteran, a review of the relevant history, and an appropriate examination. Additionally, the opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale, relying on and citing to the records reviewed. Furthermore, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Consequently, the Board assigns great probative value to the VA examiners’ opinions regarding the limitations associated with the Veteran’s service-connected disabilities, to include the impact that such have on his ability to secure and maintain gainful employment. The Board has considered the October 2017 from the vocational expert. However, as discussed previously, such was based on an inaccurate factual premise and, consequently, is entitled to less probative weight. The vocational expert is not a medical professional and, as such, the Board finds that he does not have the expertise to identify the limitations associated with the Veteran’s service-connected disabilities. See Geib, supra; Floore, supra. While the Board respects the vocational expert’s qualifications, the Court and Federal Circuit have held that the ultimate question of whether a veteran is capable of substantial gainful employment is a determination for the adjudicator. Id. The Veteran is competent to provide testimony pertaining to the limitations imposed by his service-connected disabilities. However, the competent medical evidence offering detailed specific findings pertinent to the criteria governing the award of TDIU is the most probative evidence with regard to evaluating the impact of the Veteran’s service-connected disabilities on his employability. As such, while the Board accepts the Veteran’s statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and the impact of the service-connected disabilities on the Veteran’s employability. As the record does not show that during the period from March 2, 2017 to August 6, 2018, the Veteran was unemployable, i.e., that he was unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities only, the claim for TDIU is denied. 4. Entitlement to TDIU from January 12, 2017 to March 1, 2017, and from August 7, 2018 As the Veteran is now in receipt of a 100 percent schedular rating for coronary artery disease post stent effective the date of claim for a higher evaluation on January 12, 2017 to March 1, 2017, and again from August 7, 2018, the Board concludes that the claim for a total rating due to individual unemployability is moot during those periods. As explained above, the Veteran’s coronary artery disease necessitated the implantation of a pacemaker in December 2016, warranting a 100 percent rating, as of January 12, 2017, the date of claim, during surgical recovery, and again when the disability degraded as of the VA examination on August 7, 2018. Accordingly, entitlement to TDIU is denied. In reaching this conclusion, the Board acknowledges that the receipt of a 100 percent schedular disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU. A TDIU rating may still form the basis for assignment of SMC under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)); See also 75 Fed. Reg. 11, 229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). In addition to his coronary artery disease post stent, the Veteran has been awarded service connection for prostate cancer status post prostatectomy at 60 percent disability evaluation level, left shoulder separation at 20 percent, tinnitus at 10 percent, supraventricular arrhythmia at 10 percent, and residuals of right finger fracture, right stapendectomy and hearing loss, deflected nasal septum, erectile dysfunction, vasomotor rhinitis, and scar associated with coronary artery disease status post stent, all at a noncompensable level. However, the record does not reflect that the Veteran’s additional service connected disabilities, without consideration of his 100 percent rated coronary artery disease status post stent, rendered him unemployable. On the contrary, the March 2017 VA examiner and August 2018 VA examiner noted that because of the Veteran’s coronary artery disease treatment, he developed the supraventricular bradycardia that was remedied by the implantation of the pacemaker. The March 2017 VA examiner suggested that the Veteran’s rhinitis would affect employment in outdoor settings or environments with tough odors. The March 2017 examiner suggested that the Veteran’s ear disability would limit his ability to work in a high-pitched noise environment. The March 2017 examiner suggested that the Veteran’s left shoulder disability would limit the Veteran in employment if required to lift objects above shoulder level. The March 2017 examiner suggested that the Veteran would be limited in performing manual labor due to the residuals of fractured right finger disability. The March 2017 examiner suggested that the Veteran’s residuals of prostate cancer disability would require him to be located near a bathroom due to urinary frequency. The March 2017 examiner suggested that the Veteran’s coronary artery disease would create difficulty in performing high demand physical work or persistent strenuous activity. Accordingly, a TDIU is denied as moot for the period of January 12, 2017 to March 1, 2017, and from August 7, 2018. The Veteran receives SMC under 38 U.S.C. § 1114(s) based on the 100 percent rating for coronary artery disease status post stent and additional service-connected prostate cancer status prostatectomy rated at 60 percent or more from January 12, 2017 to March 1, 2017, and from August 7, 2018, and under subsection (k) on account of loss of use of a creative organ since 2002. As the increased rating claims and TDIU have been denied, the Veteran’s current special monthly compensation award is not affected. REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)