Citation Nr: 18154068 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 13-02 072 DATE: November 29, 2018 ORDER Entitlement to an initial rating in excess of 30 percent for service-connected arteriosclerotic heart disease is denied. Entitlement to an initial rating in excess of 30 percent for service-connected PTSD is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The evidence of record demonstrates that, throughout the appeal period, the Veteran’s arteriosclerotic heart disease manifested in evidence of cardiac hypertrophy as shown by echocardiogram, but without episodes of congestive heart failure, signs of dyspnea, fatigue, angina, dizziness, or syncope at a workload no greater than 5 METS, or left ventricular dysfunction with an ejection fraction of less than 50 percent. 2. Throughout the period on appeal, the Veteran’s psychiatric disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for arteriosclerotic heart disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7005. 2. The criteria for rating in excess of 30 percent for posttraumatic stress disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.125, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to November 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision. This case was previously before the Board in January 2018, when they were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations include interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activities, 38 C.F.R. § 4.10. See Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Where a claimant has expressed dissatisfaction with the assignment of an initial evaluation following an award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Arteriosclerotic Heart Disease The Veteran’s coronary artery disease is currently rated as 30 percent disabling under Diagnostic Code 7005 effective January 10, 2011, the date of the Veteran’s claim for service connection. Under Diagnostic Code 7005, a 30 percent rating is justified when 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. A 60 percent rating requires 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 rating is warranted where there is chronic congestive heart failure; 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. 38 C.F.R. § 4.104, Diagnostic Code 7005. One MET, or 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. During the period on appeal, the Veteran was first seen by a VA examiner in February 2011 for an examination related to his service-connected diabetes mellitus. As part of this report, the examiner noted the Veteran’s arteriosclerotic heart disease as asymptomatic with cardiac catheterization positive for stenosis of left main and activity level noted about 5 to 7 METs. A March 2017 Ischemic Heart Disease Disability Benefits Questionnaire (DBQ) noted atherosclerotic cardiovascular disease, coronary artery disease, stable angina, and hypertensive heart disease. The examiner reported no congestive heart failure or hospitalization for the treatment of his condition. The DBQ contains no response to questions regarding evidence of cardiac hypertrophy or dilation, and no METs test was provided as part of the report. After the most recent Board remand, the Veteran was provided another VA examination in April 2018. The examiner noted symptoms of fatigue with prolonged exertion, but no history of chest pains was noted. Evidence of mild left ventricular hypertrophy was noted based on the echocardiogram performed related to the March 2017 examination with a left ventricular ejection fraction of 60 percent. The examiner cited a November 2011 stress test as the most recent METs test, which showed a METs level of 7.2. The examiner performed an interview-based METs test and found the Veteran’s METs level to be greater than 7 to 10 METs based on the Veteran’s reports of fatigue with prolonged exertion. The examiners’ reports are competent and credible, as the reports were based on reviews of the Veteran’s medical records and in-person examinations of the Veteran, and are therefore entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran’s medical records generally reflect similar findings to the VA examination reports. The METs test cited by the April 2018 VA examiner was performed in November 2011 as part of the Veteran’s VA treatment. Findings from this test indicated the Veteran was negative for ischemia or angina, and exercise tolerance was noted as acceptable for a man of the Veteran’s age and lifestyle. Since that time, outpatient notes have generally described the Veteran’s cardiovascular condition as stable and normal. In his lay statements in support of his claim, the Veteran has generally asserted that his condition has caused him to be constantly tired and easily fatigued. The Veteran’s statements do not indicate the level activity required to bring about fatigue symptoms, and he has provided no indication that his level of activity leading to fatigue differed from that described by the VA examiners. Based on these facts, the Board finds that the preponderance of the evidence shows that the Veteran has not met the criteria for a rating in excess of 30 percent for his arteriosclerotic heart disease. He has experienced no episodes of congestive heart failure, signs of dyspnea, fatigue, angina, dizziness, or syncope at a workload no greater than 5 METS, or shown left ventricular dysfunction with an ejection fraction of less than 50 percent. Therefore, a higher initial rating is not warranted. 2. PTSD The Veteran’s service-connected PTSD is currently under Diagnostic Code 9411, which is rated under the General Rating Formula for Mental Disorders, effective January 10, 2011, the date of the Veteran’s claim for service connection. 38 C.F.R. § 4.130. Based on this criteria, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, “serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas;” that is, “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vasquez-Claudio, 713 F.3d at 117-18. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission.” 38 C.F.R. § 4.126(a). The Board must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of examination.” Id. Accordingly, an examiner’s classification of the level of psychiatric impairment is to be considered but is not determinative of the VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995). In this case, the Veteran has been provided two VA examinations for his PTSD during the period on appeal. The March 2011 VA examiner reported symptoms of ongoing fearing, anxiety, hypervigilance, insomnia, irritability, and mild depression, which generally contribute to social isolation and difficulty maintaining relationships. The Veteran denied thoughts of suicide and denied significant avoidance behaviors and hyper reactivity. The examiner noted that the Veteran’s concentration skills, short-term memory, abstract reasoning, and impulse control were grossly intact for the interview. He demonstrated no cognitive impairment. The examiner determined that the Veteran was fully independent with regard to all activities of daily living. The May 2018 VA examination indicated similar symptoms of anxiety, suspiciousness, chronic sleep impairment, depression, disturbances of motivation and mood, and difficulty establishing and maintain effective relationships. The Veteran was guarded and irritable, reported regular feelings of depression and nightmares a few times each week. The Veteran also reported having a girlfriend that he saw four days a week and taking walks to try to stay healthy. He denied significant behavioral disturbances. The examiner noted that the Veteran was oriented to person, place and time. In general, the examiner opined that the Veteran’s symptoms were more likely than not of a similar severity to those described in the March 2011 examination based on his review of the Veteran’s record. The examiners’ reports are competent and credible, as the reports were based on reviews of the Veteran’s medical records and in-person examinations of the Veteran, and are therefore entitled to significant probative weight. See Nieves-Rodriguez, 22 Vet. App. 295, 304 (2008). The Veteran has received treatment from VA throughout the period on appeal, and the records of that treatment reflect symptoms consistent with the findings of the VA examinations. In treatment, the Veteran has consistently described symptoms of anxiety, worry, hypervigilance, and difficulty maintaining relationships, sometimes noting difficulty concentrating, nightmares, and avoidance behavior. The Veteran has never reported thoughts of suicide, instances of violent behavior, panic attacks, or consistent cognitive impairment, such as memory loss, impaired speech, or difficulty understanding complex tasks. The lay evidence provided by the Veteran likewise shows symptoms of depressed mood, anxiety, sleep problems, and inhibition of social relationships. There were no reports significant cognitive impairment, though the Veteran stated he has trouble concentrating due to his symptoms. Based on the preponderance of the evidence, the Board finds the Veterans symptoms throughout the period on appeal have been stable and most closely reflect the criteria for a 30 percent rating. The Veteran has exhibited consistent signs of depression, anxiety, suspiciousness, chronic sleep impairment, and difficulty concentrating throughout the appeal period. He has not experienced panic attacks; circumstantial, circumlocutory, or stereotyped speech; flattened affect; or impairment to cognitive function resulting in decline of memory, abstract thinking, or the ability to understand complex commands, or symptoms of similar type and frequency. The available evidence indicates that the Veteran is able to function independently and he manages to maintain social relationships despite reported difficulties caused by his PTSD condition. For these reasons, the Board finds that a rating 30 percent for PTSD is appropriate, and a higher rating is not warranted for any time during the period on appeal. REASONS FOR REMAND VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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 a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). In this case, the record provides vague and contradictory accounts of the Veteran’s employment history that prevent the Board from reaching a conclusion on his claim. In his February 2018 application for TDIU submitted in response to the prior Board remand, the only employment noted by the Veteran is a job installing furniture from August 2004 to February 2009, which he claims was the last time he worked. Earlier mental health treatment records from May 2011, however, indicate that the Veteran reported that he had retired two years prior after working for the U.S. Post Office for 25 years, and he was in receipt of a pension from the postal service. This record also indicates that he had worked 7 weeks prior to that treatment record, though the nature of this work is not provided. Yet another account is provided in the Veteran’s March 2011 VA examination for PTSD. The occupational history provided by the Veteran states he worked for the postal service for over 20 years as a carrier, clerk, and supervisor. He also states his reason for leaving this job was because he was caught stealing to money and fired. He noted that he then worked as a carpenter. Given these inconsistencies, the Board finds it necessary to remand for additional information before deciding the TDIU claim. The matters are REMANDED for the following action: 1. Request the Veteran provide a more complete employment history, to include information related to his employment at the U.S. Post Office and the circumstances of how is employment ended. Specifically ask the Veteran about his job and duties as a supervisor, including how long he held that position and what the physical demands were. Also request further information on any employment held after February 2009, to include employment noted in the Veteran’s VA treatment record dated May 2011. 2. Obtain all available records related to the Veteran’s employment with the U.S. Post Office and associate them with the Veteran’s file. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Pitman, Associate Counsel