Citation Nr: 18155423 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-39 614 DATE: December 4, 2018 ORDER Entitlement to an effective date prior to July 25, 2014, for the assignment of a 60 percent rating for hypertensive cardiac disease is denied. Entitlement to total disability rating based on unemployment (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s claim for an increased disability rating for hypertensive cardiac disease was received on July 25, 2014; no claim, either formal or informal, was received prior to that date. 2. It is not factually ascertainable that the service-connected hypertensive cardiac disease increased in severity before July 25, 2014. 3. The preponderance of the evidence is against finding that the Veteran’s service-connected disabilities preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to July 25, 2014, for the assignment of a 60 percent rating for hypertensive cardiac disease have not been met. 38 U.S.C. §§ 1155, 5103A, 5110, 7105 (2012); 38 C.F.R. §§ 3.159, 3.400(o)(2), 4.104 Diagnostic Code 7007 (2018). 2. The criteria for entitlement to total disability rating based on unemployment (TDIU) have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1970 to May 1974. This appeal to the Board of Veteran’s Appeals (Board) arose from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran has perfected a timely appeal. See March 2015 Notice of Disagreement (NOD); August 2016 Statement of the Case (SOC); September 2016 Substantive Appeal (VA Form 9). The Board notes that the Veteran’s issues regarding entitlement to increased ratings in excess of the current ratings for hypertensive cardiac disease and ascending aortic aneurysm were withdrawn by the Veteran. Therefore, those two issues are not before the Board for consideration. Effective Dates Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule provides that the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application). 1. Entitlement to an effective date of prior to July 25, 2014, for the assignment of a 60 percent rating for hypertensive cardiac disease The Board notes that the Veteran worded his claim as an entitlement to an earlier effective for service connection for his hypertensive cardiac disease, contending the effective date should be July 30, 2007. However, service connection for his heart condition is effective July 30, 2007, the date of the informal claim for service connection. The Veteran filed for an increased rating claim in July 2014. Thus, the Board will construe the Veteran’s claim as entitlement to an earlier effective date for the 60 percent increased rating for hypertensive cardiac disease. In a May 2009 rating decision, the Veteran was granted service connection for hypertensive cardiac disease with left atrial enlargement, with a rating evaluation of 30 percent, effective December 16, 2008. In June 2009, the Veteran filed a notice of disagreement of the May 2009 decision regarding the initial rating. In a March 2010 rating decision, the rating officer (RO) continued the rating at 30 percent. In July 2010, the Veteran submitted evidence regarding his claim for increased rating. In April 2012, the RO continued the rating at 30 percent. The Veteran did not timely file a NOD or submit evidence within a year of that decision; thus, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. The Veteran appealed the May 2009 rating decision to the Board, seeking entitlement to an effective date earlier than December 16, 2008 for the grant of service connection for hypertensive cardiac disease and ascending aortic aneurysm secondary to service-connected hypertension. In the January 2014 Board decision, the Board found that the Veteran notified the RO on July 30, 2007 about receiving emergency care for ascending aortic aneurysm in July 2007. The Board found that notification to be an informal claim for service connection for a heart disability, secondary to hypertension. Accordingly, the Board found that an effective date of July 30, 2007 was warranted. The decision became final, in accordance with 38 C.F.R. §20.1100(a). In a January 2014 rating decision, in accordance with the Board’s decision, the RO assigned an effective date of July 30, 2007 for service connection for hypertensive cardiac disease and ascending aortic aneurysm. Hypertensive cardiac disease was still rated at 30 percent disabling. The Veteran did not file a NOD or submit evidence within one year. Thus, the January 2014 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.1103. In July 2014, the Veteran filed a claim for an increased rating evaluation for his heart conditions. In the March 2015 rating decision, the RO increased the rating for hypertensive cardiac disease from 30 percent to 60 percent, effective July 25, 2014, the date the claim was received. Based on the procedural history outlined above, the Board determines that the date of the increased rating claim regarding hypertensive cardiac disease is July 25, 2014. This would be the effective date of the claim. In order for an earlier effective date to be warranted for an increased rating claim, the evidence must show that an increase in severity of the Veteran’s condition has occurred earlier than the date of claim, and that increased rating claim was received within a year of that date. According to Diagnostic Code 7007 outlined in 38 C.F.R. §4.104, a 60 percent rating for hypertensive cardiac disease is assigned when the Veteran has more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs (metabolic equivalents of task) but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Turning now to the medical evidence of the record, in July 2007, the Veteran had several visits to the hospital regarding chest pain complaints. Ejection fraction of his left ventricle was noted at 52 percent. In a December 2007 VA examination, the Veteran’s ejection fraction was between 45 and 50 percent. In December 2009, the Veteran’s METs were recorded being between 5 to 7. In a March 2010 VA examination, the Veteran’s ejection fraction was noted at 64 percent. The examiner stated that his left ventricular size and function was normal. This medical evidence did not occur within one year of the increased rating claim filed in July 2014; thus, it is not relevant to the determination of an assignment of an earlier effective date. In the January 2015 VA examination, the Veteran contended that he experiences chest pains. The symptoms are relieved by sitting, and relaxing. The Veteran did not have congestive heart failure. The Veteran’s left ventricular ejection fraction was noted at 63 percent on July 16, 2014. His METs were noted between 3 and 5 on January 15, 2015. In the March 2016 VA examination, the Veteran was noted as not having congestive heart failure. The Veteran’s left ventricular ejection fraction was noted at 54 percent on July 16, 2015. His METs were noted between 3 and5 on March 29, 2016. The Board acknowledges that the Veteran proposes that the effective date should be July 30, 2007, which is the date of the informal claim of service connection for a heart condition. The Veteran filed an increased rating claim for hypertensive cardiac disease in July 2014. According to the statute and regulations, the July 2014 date would be the appropriate effective date, not the date of the service connection claim. Based on the current medical evidence of the record, July 25, 2014 is the earliest date as of which it was factually ascertainable that the Veteran’s hypertensive cardiac disease increased in severity. Therefore, the Board finds that an earlier effective date for a 60 percent rating is not warranted. Total Disability Rating based on Unemployability (TDIU) A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a Veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 2. Entitlement to total disability rating based on unemployment (TDIU). The Veteran filed a claim for increased compensation based on unemployability (TDIU) in November 2014. See November 2014 VA 21-8940. He contends that due to his service-connected heart conditions he had to retire from his job; thus, he cannot sustain gainful employment. In order for the Veteran to be eligible for consideration of a TDIU rating under 38 C.F.R. § 4.16, the Veteran’s disability rating must meet the schedular criteria. In this case, the Veteran is service-connected for ascending aortic aneurysm, rated at 60 percent disabling from July 30, 2007, hypertensive cardiac disease, rated at 60 percent disabling from July 24, 2014, tinnitus, rated at 10 percent disabling from June 14, 2007, high blood pressure, rated as noncompensable from May 10, 1974, and bilateral sensorineural hearing loss, rated as noncompensable from July 9, 2004. From July 2014, the Veteran’s combined evaluation rating is 90 percent, with two of the Veteran’s disabilities having a rating of 60 percent respectfully. Therefore, the Veteran is eligible for consideration of a TDIU rating under 4.16(a). Now, the Board has to determine whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities, specifically if the Veteran is capable of performing the physical and mental acts required by employment. In the November 2014 VA 21-8940, the Veteran stated that he last worked full-time in December 2007 as a materials handler. The Veteran indicated that he left his last job because of his disability. He also indicated that he completed four years of college. In a VA medical letter dated December 2014, the Veteran’s doctor notes that in late 2007 and early 2008, the Veteran had multiple emergency room visits regarding chest pain complaints. At that time, the Veteran was working as a full-time material handler for a manufacturing company. His job required heavy lifting and excessive physical exertion. The doctor opines that this precipitated the Veteran’s chest pains. It is further noted that the Veteran’s previous doctor recommended that the Veteran consider early retirement. The Veteran retired in 2008. In a January 2015 VA examination, the examiner opined that the Veteran’s heart conditions impact his ability to perform strenuous activities because it may provoke or aggravate his heart conditions. In a March 2016 VA examination, the examiner opined that the Veteran would have to avoid any physical activity or employment that requires heavy lifting or straining. The examiner stated that there would be not any impact on employment that did not require heavy physical activity, such as lifting or straining. In the November 2017 Report of School Attendance (VA 21-674), the Veteran reported attending school for science classes. He expresses desire to finish his classes, specifically entering a sonography program. He contends that he was denied because of his total earnings last year. He now works part time, but states that he does not make nearing as much as of May 2017. Based on the evidence of the record, the Board finds that the Veteran is not precluded from sustaining gainful employment due to his service-connected disabilities. Although the medical evidence states that he is precluded from performing any jobs with heavy lifting, straining, and physical exertion, the March 2016 examiner noted that the Veteran could still do activities that do not require such physical activity. The Veteran’s symptoms are said to be relieved by sitting. The Veteran has a college education, is currently working part time, and planning to go to school. The Veteran appears to be currently in or pursuing a field where strenuous activity is not required. The Board further finds that his service-connected disabilities does not significantly impact his ability to perform the physical and mental acts required by employment. Accordingly, the Board finds that entitlement to TDIU due to the Veteran’s service-connected disabilities is not warranted. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Syesa Middleton, Associate Counsel