Citation Nr: 18153722 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 13-03 505A DATE: November 28, 2018 ORDER Entitlement to service connection for transient global amnesia is denied. Entitlement to a disability rating exceeding 30 percent for coronary artery disease (CAD) from July 1, 2011 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran experienced transient global amnesia or another memory loss disorder independent of his service-connected posttraumatic stress disorder (PTSD) during the period at issue. 2. The preponderance of the evidence shows that the Veteran’s last myocardial infarction documented by laboratory tests occurred in March 2011. 3. Beginning July 1, 2011, the preponderance of the evidence is against findings that (1) the Veteran had more than one episode of acute congestive heart failure in the past year, or; (2) a workload of greater than 3 METs but not greater than 5 METs resulted in dyspnea, fatigue, angina, dizziness, or syncope, or; (3) the Veteran had left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 4. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for transient global amnesia have not been met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310 (2017). 2. The criteria for entitlement to a disability rating for a heart disability exceeding 30 percent from July 1, 2011 have not been met. 38 U.S.C. §§ 1101, 1110, 1113 (2012); 38 C.F.R. § 4.104, Diagnostic Codes (DCs) 7000-7123; 4.3, 4.7 (2017). 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155 (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 April 1968 to February 1970. This appeal comes to the Board of Veterans’ Appeals (Board) from September 2011 and February 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these matters for further development including obtaining outstanding records and adequate VA examinations in March 2015 and June 2017. The Board finds the Agency of Original Jurisdiction (AOJ) made adequate efforts to associate all identified outstanding records with the Veteran’s claims file, and the Board finds the VA examinations are adequate for the purpose of adjudicating the matters on appeal. On return of this case to the Board, Veteran and his representative have not raised any remaining issues with the duty to notify or duty to assist regarding the Veteran’s claims. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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). 1. Entitlement to service connection for transient global amnesia Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran contends he experienced several episodes of amnesia prior to the filing of his claim for service connection for the condition in January 2010. However, the Board finds that the Veteran’s claim must be denied because the preponderance of the evidence is against finding that the Veteran experienced transient global amnesia or another memory loss disorder independent of his service-connected PTSD during the period at issue. Records from St. John Medical Center document an impression of global amnesia in October 2009. VA examiners have assessed the Veteran with mild memory loss attributed to his PTSD, but they have also indicated that the more severe amnesia episodes are not likely attributable to PTSD. See June 2016 VA PTSD examination; January 2011 VA PTSD examination; February 2010 VA PTSD examination. To date, no treatment provider or VA examiner has been able to definitively identify an etiology for the prior episodes of amnesia. The Board ultimately finds further development on this matter is not necessary as neither the medical evidence nor the Veteran’s contentions indicate there has been a recurrence of amnesia during the period at issue. See, e.g., June 2016 VA PTSD examination (indicating the Veteran and his wife denied the Veteran had significant, current memory problems); January 2011 VA PTSD examination (noting that while the Veteran suffered three episodes of global transient amnesia, he denied experiencing additional episodes since his last evaluation). To the extent that the Veteran suffers from mild memory loss at times, the Board finds such memory loss is contemplated by the Veteran’s 50 percent disability rating for PTSD. See 38 C.F.R. § 4.130. Moreover, even assuming the Veteran had a current, separate disability of global transient amnesia during the period at issue, the Board finds there is no competent and compelling evidence of record linking it to the Veteran’s service or a service connected disability. Accordingly, the Veteran’s claim must be denied. 2. Entitlement to a disability rating exceeding 30 percent for CAD from July 1, 2011 The Veteran’s heart disability is rated at 30 percent from July 1, 2011 under 38 C.F.R. § 4.104, DC 7006. Prior to July 1, 2011, the disability was rated at 100 percent from the date of service connection (April 7, 2011). Under DC 7006, a 30 percent disability rating contemplates: a disability in which a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The focus of this appeal is on whether the evidence supports a higher rating beginning July 1, 2011. Under DC 7006, a 60 percent disability rating contemplates: 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. Under DC 7006, a 100 percent rating is assigned for three months following a myocardial infarction documented by laboratory tests, and it also contemplates: 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. Records from Oregon Health and Science University show that the Veteran was treated for a myocardial infarction with placement of two stents in March 2011. The Veteran was assigned a 100 percent disability rating for the myocardial infarction under DC 7006 through June 2011. Thereafter, the Veteran’s disability is rated at 30 percent. The Board finds no compelling evidence or contention of record indicating that the Veteran has suffered another myocardial infarction or has received major surgery for his heart condition since March 2011. A November 2011 VA heart examiner found that the Veteran’s heart condition would preclude him from doing strenuous parts of his past work including climbing ladders going up fuel tanks. The November 2011 heart examiner noted the Veteran reported he became more active, waked about a mile, and was mostly back to his usual activity. The examiner noted the Veteran reported mild chest tightness with activity and avoided running, chopping firewood, or other extremely strenuous activity. The examiner noted the Veteran reported he can do activities of daily living and drive short distances. The examiner noted the Veteran required continuous medication to control his heart condition. The examiner noted the Veteran’s stress test from March 2011 revealed the Veteran could perform to 6.3 METs before stopping due to shortness of breath. The examiner conducted an interview-based METs test and found the Veteran could perform to a workload of greater than 5 METs before experiencing relevant symptoms including dyspnea and fatigue. The examination report notes this METs level has been found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavy yard work (digging). While the Veteran’s representative indicated on the Veteran’s substantive appeal form in February 2013 that the examiner’s opinion was inadequate as the Veteran experienced dyspnea at less than 5 METs, the Board affords little probative value to the statement as it is not supported by METs assessments in the record after July 1, 2011 or a thorough explanation based on the Veteran’s reported activity levels over time. Nevertheless, the Board afforded the Veteran an additional examination to consider the contention in the context of later records. VA examinations of the Veteran’s heart in June 2018 and August 2018 indicate that the Veteran’s current heart condition is substantially improved from the previous assessments. Diagnostic testing including an echocardiogram from August 2018 revealed the left ventricle chamber size and wall thickness are normal, the left ventricular systolic function is at the lower limits of normal, and the right ventricle is normal in size and function. It revealed no significant valvular disease. The August 2018 VA examiner cited recent treatment records indicating the Veteran’s heart condition is currently asymptomatic. However, the examiner reported that the Veteran told him that his exercise capacity is currently about the same as at the time of the November 2011 examination, and the examiner indicated the Veteran’s heart condition limited physically demanding employment. The examiner indicated the Veteran’s left ventricular ejection fraction was 55-60 percent and that the Veteran could perform a workload of greater than 5 METs before experiencing relevant symptoms such as dyspnea. The examiner based the opinion on the echocardiogram and an interview-based METs test in the context of the Veteran’s treatment history. The examiner indicated further METs testing in this case would be unethical as it carries a small risk or morbidity and mortality and is unnecessary in light of the mostly normal findings. In light of the normal findings on the echocardiogram and the Veteran’s statements about his current exercise capacity, the Board finds it is not necessary to put the Veteran’s life or health at risk to fairly adjudicate the claim. Since this matter has returned to the Board, neither the Veteran not the Veteran’s representative have indicated additional testing is necessary or desired. Affording the Veteran the benefit of the doubt, the 30 percent rating is maintained. However, as the preponderance of the evidence is against a finding that the Veteran’s disability meets the criteria for an increased rating, the Veteran’s claim must be denied. 3. Entitlement to TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is currently service connected for PTSD (50 percent), CAD (30 percent), tinnitus (10 percent), residuals of a right fourth metacarpal fracture (0 percent), and bilateral hearing loss (0 percent). The Board finds that the Veteran meets the schedular criteria for TDIU as the Veteran’s PTSD is rated at 50 percent and his combined disability rating is 70 percent. However, the Board finds the preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. VA received the Veteran’s application for service connection for a mental disability in January 2010. The Veteran submitted statements from his treatment providers including a February 2010 statement from A.O.,MN, APRN-BC, indicates Veteran would need three months away from his employment as he was deemed psychiatrically unstable. However, the Board finds the opinions were rendered while the Veteran was being evaluated for a history of global amnesia, which is not a service-connected disability or current disability during the period at issue. The Board affords them little probative value in the context of the totality of the evidence including later records showing the Veteran was less limited. At a February 2010 VA mental health examination, the examiner noted the Veteran reported completing school until he was jailed in the twelfth grade. The examiner noted the Veteran reported he earned his GED, worked on a farm, and then entered the military. The examiner noted that after the military the Veteran worked on tug boats for twelve years by himself and that he worked in wood cutting and the petroleum industry for twenty-five years. The examiner noted the Veteran reported that his PTSD symptoms impacted his ability to work including his short-term memory and concentration problems in all jobs, difficulty getting along with coworkers and bosses in all jobs, which resulted in him close to being fired a number of times. The examiner noted the Veteran recently had been placed on medical disability as a result of blackouts experienced through October 2009. While the Veteran reported difficulties socially and with concentration and short-term memory, the examiner noted the Veteran was cooperative, had normal thought processes, and was competent to conduct activities of daily living. An April 2010 VA hearing loss and tinnitus examiner found that while the Veteran had some moderate to severe high frequency hearing loss, the Veteran’s word recognition was excellent. The Board finds that while the Veteran would not be able to work in jobs requiring excellent hearing, the evidence shows he is still capable of communicating with others and following verbal instructions. See also January 2011 VA hearing loss and tinnitus examination (indicating the Veteran’s hearing loss and tinnitus did not cause substantial occupational limitations). The record shows the Veteran filed a claim for social security disability benefits. The Board affords no weight to the legal determinations of the Social Security Administration (SSA) as the nature of the claims and law differs from the claims before the Board. However, the Board considered evidence of functional limitations contained within the records received from SSA to the extent that the evidence shows they are caused by service-connected disabilities. The records also contain additional relevant information about the Veteran’s educational background and work history, which the Board has considered in the context of the totality of the evidence. The SSA records show the Veteran worked full-time as a petroleum operator full time from June 1986 to October 2009. In a September 2010 adult function report, the Veteran reported his former employment required him to work long hours and all shifts. He reported he worked in the petroleum industry but also worked by himself most of the time. He reported he needed to be alert at all times despite his anxiety and panic attacks, which limited his ability to focus on his job. The Veteran reported that he spends his days reading his bible, going for walks, helping his parents, preparing meals, performing yard work, cleaning the house, driving a car at times when he needs to go out, shopping in stores, fishing, watching TV, spending time with family, and going to church. However, he reported he has trouble getting along with others, walking more than a mile without rest, and handling stress. He reported he could follow written instructions very well. See also September 2010 Third Party Function Report from the Veteran’s mother (indicating the Veteran could complete a variety of chores, follow instructions, and interact with family despite having a “short fuse”).   VA received a separate application for entitlement to TDIU in January 2011. The Veteran indicated on the TDIU application that he last worked on April 16, 2010 and become too disabled to work on that date. However, a January 2011 VA PTSD examiner noted the Veteran reported going to the river and fishing, attending church and bible study, completing yard work, and watching television. The examiner noted the Veteran cited global transient amnesia as a barrier to employment in addition to other factors including age and the distance of most jobs from his home. The examiner noted the Veteran tended to isolate at home, avoiding people in crowds. The examiner noted the Veteran reported he didn’t get lonely because he lived close to his family. The January 2011 PTSD examiner noted the Veteran had many symptoms including (but not limited to) feelings of depression, helplessness, difficulties with productivity, mild problems with memory and concentration, and difficulties sleeping. The examiner opined the Veteran’s amnesia did not appear to be consistent with PTSD and noted there was not event in over a year. The examiner indicated the Veteran would improve on medication. SSA obtained a medical opinion from J.B., Psy.D. on the Veteran’s mental limitations due to PTSD in March 2011. The doctor opined the Veteran retained the ability to understand and remember one to two step instructions but does not retain the ability to understand and remember three or more step instructions. The doctor opined the Veteran retains the ability to maintain attention and concentration for one to two step instructions for two hours at a time without breaks but does not retain the ability to maintain attention and concentration for three or more step instructions for two hours at a time without breaks. The Board affords some probative value to the opinion of J.B. as the Board finds it is consistent with the preponderance of the evidence including the Veteran’s statements about his activities of daily living and assessments by other mental health professionals. The Board finds that a review of subsequent records does indicate the Veteran improved on medication during the period at issue consistent with the January 2011 examiner’s opinion. See, e.g., August 2011 Mental Health Outpatient Note from Vancouver VA Medical Center (noting that the Veteran reported he was “doing fine” and was fishing a lot including with his brothers). A June 2016 VA PTSD examiner opined the Veteran had occupational and social impairment with reduced reliability and productivity, but the Board finds the examination shows the Veteran retained significant social functioning and the ability to complete many tasks. The examiner noted the Veteran reported living with his fourth wife of one year. The examiner noted neither the Veteran nor his wife reported current significant memory problems in the Veteran. The examiner noted the Veteran reported he fished nearly every day and interacts some with others when fishing. The examiner noted the Veteran was well groomed and demonstrated good verbal fluency although at times he had mild difficulty recalling time frames without prompting. The examiner reported the Veteran was correctly oriented to person, place, time, and purpose and exhibited logical and goal directed thoughts without hallucinations or delusions. The examiner indicated the Veteran’s affect was within normal limits and that his mood was happy. As noted above, the evidence shows the Veteran’s CAD has significantly improved since his treatment for a myocardial infarction. Examinations of the Veteran’s service-connected right fourth metacarpal disability revealed no significant occupational limitations such as loss of range of motion or strength. See, e.g. January 2011 VA General Medical Examination; March 2010 VA hand and foot examination. However, the examiners and the Board have noted the Veterans reports of pain in the morning, during cold weather, or with strenuous use. Affording the Veteran the benefit of the doubt, the Board finds the Veteran’s heart and hand disabilities limit the Veteran to work that can be performed (but is not required to be performed) entirely from a seated position without constant lifting or handling of objects with the dominant, right hand. The Board finds this accounts for the exertional limitations identified by the Veteran in his statements and limitations identified by the VA examiners including the August 2018 examiner’s finding that the Veteran’s ability to perform physically demanding work is limited. Ultimately, the Board finds that evidence from the Veteran’s treatment providers, the VA examiners, and the Veteran’s statements over several years show that the Veteran still retains the ability to follow instructions and complete one to two step tasks from a seated position with occasional social interaction without constant handling or lifting with the dominant hand. For example, the Veteran has reported frequently fishing including in the company of others. Considering the Veteran’s GED and work history spanning several decades in various positions utilizing acquired skills, the Board finds the Veteran’s claim for TDIU must be denied as the preponderance of the evidence shows the Veteran is capable of adapting to and maintaining substantially gainful employment. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel