Citation Nr: 18153977 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 13-09 609A DATE: November 29, 2018 ORDER Entitlement to an effective date prior to December 6, 2010 for a 60 percent evaluation for ischemic heart disease is denied. Entitlement to an initial evaluation in excess of 10 percent for ischemic heart disease prior to December 6, 2010 is denied. Entitlement to an earlier effective date prior to December 6, 2010 for the grant of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence weighs against finding that prior to December 6, 2010, the Veteran’s ischemic heart disease (IHD)/coronary artery disease (CAD) caused him dyspnea, fatigue, angina, dizziness, or syncope at a metabolic equivalents (METs) level of 7 or less; cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray; more than one episode of acute congestive heart failure within a year; left ventricular dysfunction with an ejection fraction of less than 50 percent; or chronic congestive heart failure. 2. The Veteran’s IHD/CAD did not preclude him from obtaining and maintaining substantially gainful employment prior to December 6, 2010. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date prior to December 6, 2010 for a 60 percent evaluation for IHD and the criteria for an initial evaluation in excess of 10 percent for IHD prior to December 6, 2010 have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 2. The criteria for entitlement to TDIU prior to December 6, 2010 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1970 to March 1972. The Board of Veterans’ Appeals (Board) notes that, upon review of the Veteran’s claims file, it finds that he has manifested an intent to appeal not only the effective date of the 60 percent evaluation for his IHD, but also the initial 10 percent evaluation of his IHD. See, e.g., notice of disagreement received in March 2011; VA Form 9, Appeal to Board of Veterans’ Appeals received in April 2013. However, the Veteran has not indicated that he disagrees with the 60 percent evaluation of his IHD from December 6, 2010. The Board also finds that in the February 2013 Statement of the Case (SOC), the Department of Veterans Affairs (VA) Regional Office (RO) at least implicitly adjudicated the issue of the Veteran’s entitlement to an initial evaluation in excess of 10 percent for his IHD prior to December 6, 2010. Considering the above, the Board finds that the issue of the Veteran’s entitlement to an initial evaluation in excess of 10 percent for his IHD prior to December 6, 2010 is on appeal, and it is therefore included on the title page above and addressed substantively below. However, because the Veteran has not disagreed with the 60 percent disability evaluation for his IHD from December 6, 2010, that issue is not on appeal. The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU is part and parcel of the claim for benefits for the underlying disability. Id. During the pendency of his appeal for the above-mentioned earlier effective date and increased evaluation claims, the Veteran raised the matter of unemployability by way of a November 2006 VA Form 21-4138, Statement in Support of Claim. The Veteran has already received notification on the issue of entitlement to TDIU in a May 2011 letter, and the issue has been adjudicated by the RO in a September 2011 rating decision. The TDIU claim, for the period prior to December 6, 2010 (when the grant was effectuated) has thus been recognized as part and parcel of the above-mentioned increased evaluation appeal and is also before the Board, as reflected on the title page above, and below. 1. Entitlement to an earlier effective date prior to December 6, 2010 for the 60 percent evaluation for ischemic heart disease and entitlement to an increased initial evaluation in excess of 10 percent for ischemic heart disease prior to December 6, 2010 The Veteran claims, in essence, that he is entitled to: (a) an earlier effective date prior to December 6, 2010 for his current 60 percent disability evaluation for his IHD/CAD (collectively referred to hereinafter as the Veteran’s “heart condition”); and (b) an increased evaluation in excess of 10 percent for his heart condition prior to December 6, 2010. He bases his claim of entitlement to that earlier effective date and increased rating on the fact that he has suffered from a significant level of fatigue and some dizziness since having a heart attack in or about 2006. See letter received in March 2011. His daughter, girlfriend and mother have authored statements indicating that the Veteran has very little energy which precludes him from working and spending time with family and friends. See VA Form 21-4138, Statement in Support of Claim received in December 2010. Generally, the effective date of a rating and award of compensation for an increased rating is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). A claim is “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is a “communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 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. See generally Fenderson v. West, 12 Vet. App. 119 (1999). 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. See 38 C.F.R. § 4.7. The Veteran’s heart condition is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7005, which sets forth the schedular evaluations for CAD. Pursuant to Diagnostic Code 7005, a 10 percent evaluation is warranted for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or the requirement of continuous medication. 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 (CHF) 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. In this case, the Veteran filed a claim for service connection for his heart condition on November 22, 2006. His VA treatment records show that he complained of some fatigue before December 6, 2010, but most of those complaints were related to a deviated septum, sleep apnea, and the side effects of prescribed medications – not his heart condition. The Veteran’s VA treatment records reveal very few complaints of heart-related fatigue or dyspnea. The Veteran was afforded a VA examination on December 6, 2010, and the examiner opined, based on the Veteran’s responses to questioning, that the Veteran’s METs level was greater than 3 but no greater than 5. His left ventricular ejection fraction was 50-55 percent. The aforementioned evidence is the most pertinent evidence of record on the issues of the effective date of the Veteran’s 60 percent disability evaluation for his heart condition and the evaluation of his heart condition prior to December 6, 2010. After review and consideration of this evidence and the remainder of the Veteran’s claims file, the Board finds that the Veteran is not entitled to an effective date prior to December 6, 2010 for his 60 percent evaluation and that he is not entitled to an increased initial evaluation in excess of 10 percent for his heart condition. The Veteran’s medical records do not indicate that he suffered from any significant heart condition-related or activity-induced dyspnea, fatigue, or other such symptoms prior to December 6, 2010. The Veteran, his daughter, his girlfriend and his mother have stated that he had been suffering from significant fatigue, including during the period prior to December 6, 2010, but the Board notes that none of those individuals are competent to opine on whether the cause of the Veteran’s fatigue is or is not his heart condition. That issue (i.e., the cause of the Veteran’s fatigue) is medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and/or the ability to interpret complicated diagnostic medical testing, and none of the aforementioned individuals have been shown to possess any such qualifications. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Thus, considering the above, the Board finds that there is no competent evidence in the claims file that the Veteran suffered from any significant fatigue, dyspnea, or other such symptoms as a result of his heart condition prior to December 6, 2010. Furthermore, there is no competent evidence that the Veteran’s heart condition caused him to have dyspnea, fatigue, angina, dizziness, or syncope at a METs level of 7 or less; cardiac hypertrophy or dilation on electrocardiogram; echocardiogram or X-ray; more than one episode of acute congestive heart failure within a year; left ventricular dysfunction with an ejection fraction of less than 50 percent; or chronic congestive heart failure during the time period in question. Therefore, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s entitlement to the 60 percent disability evaluation for his heart condition arose prior to December 6, 2010. Because his entitlement to that evaluation arose on December 6, 2010, at the earliest, and because that date is later than the date of his claim, the Veteran is not entitled to an earlier effective date for the 60 percent evaluation of his heart condition. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). Furthermore, the Board finds, based on the above, that the Veteran is not entitled to an initial evaluation in excess of 10 percent for his heart condition for the period prior to December 6, 2010. Accordingly, the claims are denied. 2. Entitlement to an earlier effective date prior to December 6, 2010 for the grant of a total disability rating based on individual unemployability (TDIU) The Veteran also claims entitlement to TDIU prior to December 6, 2010. See Informal Hearing Presentation received in October 26, 2018. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these rating requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation and Pension Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Prior to December 6, 2010, the Veteran had one service connected disability, which was the heart condition discussed above, and it was evaluated as 10 percent disabling. That evaluation does not meet the above-referenced criteria for schedular consideration for TDIU under 38 C.F.R. § 4.16(a). However, as indicated above, he may still be entitled to referral for consideration of an extraschedular grant of TDIU if the evidence shows that he is unable to secure or follow a substantially gainful occupation as a result of his service- disabilities. 38 C.F.R. § 4.16(b). As previously discussed, the Veteran and his daughter, girlfriend and mother claim that his heart condition has interfered with his ability to work. However, as also discussed above, those individuals (including the Veteran himself) are not competent to opine on whether the Veteran’s fatigue and similar symptoms are attributable to his heart condition. Furthermore, the Veteran’s VA treatment records do not reveal complaints of any significant amount of fatigue related or attributable to his heart condition. In summary, there is no competent evidence that the Veteran had been precluded from obtaining or maintaining gainful employment as a result of his one service-connected disability (i.e., his heart condition). Accordingly, the Board finds that referral of the Veteran’s claim of entitlement to TDIU for extraschedular consideration is not warranted for the period prior to December 6, 2010. Overall, the preponderance of the evidence is against the Veteran’s claim, and the claim must be denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Banks, Associate Counsel