Citation Nr: 18161290 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-04 146 DATE: December 31, 2018 ORDER Entitlement to a rating in excess of 60 percent for ischemic heart disease status post bypass graft (heart disability) is denied. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s heart disability is manifested by a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. 2. The evidence is in equipoise as to whether the Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial rating of in excess of 60 percent for a heart disability have not been met. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7017 (2017). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty April 1966 to February 1970. Increased Rating The Veteran seeks a higher rating for his service-connected heart disability. Specifically, in May 2013, the Veteran reported “I feel that my condition is worse as I have increased my medications.” See May 2013 VA Form 21-4138, Statement in Support of Claim. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). 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. Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007) The Veteran is in receipt of a 60 percent rating under DC 7017 for his service-connected heart disability during the entire period on appeal. The Veteran’s heart disability is currently rated under 38 C.F.R. § 4.104, DC 7017 for coronary bypass surgery. Under DC 7017, a 60 percent rating 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 results 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 under DC 7017 when there is chronic congestive heart failure, or; a 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. A 100 percent evaluation is also warranted under DC 7017 for 3 months following hospital admission for coronary bypass surgery. For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters 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 of METs by exercise testing 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 for disability rating purposes. 38 C.F.R. § 4.104. The Veteran was initially granted service connection for a heart disability and assigned a 30 percent disability rating in a July 2011 Rating Decision. In a November 2011 Rating Decision, the Veteran was awarded a temporary 100 evaluation for convalescence, effective August 16, 2011 to November 30, 2011, and a 30 percent evaluation effective August 16, 2011, a according to DC 7017 for coronary bypass surgery. As noted above, the Veteran sought an increased rating in May 2013. Accordingly, the Veteran was provided a VA examination in November 2013. See November 2013 VA Ischemic Heart Disease (IHD) Disability Benefits Questionnaire (DBQ). The examiner diagnosed the Veteran with IHD/coronary artery bypass graft (CABG), and angina. Id. The examiner indicated that the Veteran’s heart condition required continuous medication. She also noted prior myocardial infarction in 1996, and percutaneous coronary intervention (PCI). However, the examiner found no evidence of congestive heart failure, pericardial adhesions, cardiac hypertrophy, or cardiac dilation. The exercise METs test was manifested by a workload of greater than 3 METs but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope. The examiner noted the Veteran’s January 2012 Left ventricular ejection fraction (LVEF) was 45 percent. She also opined that the Veteran’s heart disease did not impact his ability to work. Id. The Veteran was assigned a 60 percent rating for his heart disability in a March 2014 Rating Decision. The Veteran disagreed with the rating in a March 2015 Notice of Disagreement (NOD). The Veteran reported that his “December 2013 heart catheter procedure which notes that my most recent bypass procedure has failed.” The Veteran’s private treatment records indicate the Veteran underwent a cardiac catheterization in December 2013. See Centerpoint Medical Center Records. The Veteran was diagnosed with severe coronary disease, 2 prior bypass surgeries, multiple coronary interventions with recurrent angina. Id. The Veteran underwent another VA examination in March 2016. See March 2016 VA Heart Conditions DBQ. The Veteran denied any current chest pain or shortness of breath but reported daily fatigue. Id. The examiner found no evidence of congestive failure, infectious heart condition, or heart valve condition. The examiner noted the Veteran had cardiac arrhythmia. Id. The physical examination revealed normal heart rhythm and heart sounds. The examiner noted the January 2014 echocardiogram showed cardiac hypertrophy and the December 2013 angiogram was abnormal. On interview based METs testing, the Veteran denied any symptoms associated with heart disability with physical activity. Based on the medical evidence in this case, the Veteran’s disability picture of his service-connected heart disability more nearly approximates the current rating of 60 percent. The November 2013 VA examination report confirms the Veteran’s heart disability was manifested by a workload of greater than 3 METs but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, additionally the Veteran’s LVEF was 45 percent in January 2012. As such, the evidence was consistent with a 60 percent rating with workload of greater than 3 METs, but not greater than 5 METs. The Board acknowledges that the Veteran’s statements regarding what he observes or experiences concerning his heart disorder are competent. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is not, however, competent to identify a specific level of disability of his heart disability according to the appropriate DC. Such competent evidence concerning the nature and extent of the Veteran’s heart disease has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran’s coronary artery disease is evaluated. As such, the Board finds these records and the VA examination reports to be the most probative evidence with regard to whether an increased rating is warranted. The preponderance of the evidence is against the next highest rating of 100 percent because there is no finding of chronic congestive heart failure; or, work load 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. Specifically, the November 2013 and March 2016 VA examiners specifically noted that the Veteran does not have congestive heart failure. Thus, the claim for a higher initial evaluation is denied. The Board finds no other DCs are for consideration as the Veteran’s service-connected heart disability is specifically contemplated by VA’s Rating Schedule by DC 7005. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (“[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy.”). In light of all of the above, the Board finds that the preponderance of the evidence is against an initial rating in excess of 60 percent for service-connected heart disability. TDIU The Veteran contends that his service-connected heart disability has precluded him from following any substantially gainful employment. TDIU will be awarded when a Veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability or disabilities. 38 C.F.R. § 4.16 (a). To qualify for a TDIU on a schedular basis, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation because of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. Id. The United States Court of Appeals for the Federal Circuit, the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the findings obtained on examination is not on whether the Veteran is unemployable due to his service-connected disabilities, but, rather the functional impairment caused solely by his service-connected disabilities in concert. The Veteran stated that “[m]y heart condition has prevented me from returning to my occupation as a police officer. I have not been able to work in my occupational field since December 1996 due to my service connected heart condition.” See March 2015 Notice of Disagreement. The Veteran’s private treatment records show that he was diagnosed with coronary artery disease and underwent a CABG in May 1996. See Baptist Medical Center Operative Report. In a letter dated December 1996, the Kansas City Board of Police Commissioners certified that the Veteran was “physically incapacitated for further performance of duty due to [heart] disability” following a heart attack. See December 1996 Letter. The letter further stated that the Veteran’s disability was permanent and that he should be retired effective the date of the letter. Id. The Veteran’s educational record demonstrates he attended a junior college from 1965 to 1966. See July 1971 Veteran’s Application for Program of Education or Training. The Veteran also reported on the application that he was a police officer for the Kansas City Police Department. A November 1996 Memorandum, confirmed that the Veteran had served as a police officer for over 25 years. See November 1996 Retirement Evaluation Memorandum. The November 2013 VA examiner found that the Veteran’s heart disease did not impact his ability to work. November 2013 VA IHD DBQ. The examiner noted the Veteran’s entire career was in security and that he retired after his “first cardiac event in 1996.” Id. The examiner also noted the Veteran was unable to return to work due to another CABG in 2011. The examiner opined that the Veteran was capable of sedentary or supervisory work. Id. A February 2016 Social Security Administration (SSA) indicated that the SSA did not have any of the Veteran’s medical records. Thus, SSA records are not relevant to the Veteran’s claim for TDIU. The March 2016 VA examiner opined that the Veteran’s heart disability affected his ability to work. See March 2016 VA Heart Conditions DBQ. Specifically, the examiner stated “[g]iven his severe coronary atherosclerosis, the Veteran requires chronic treatment with the anticoagulant Clopidrogel.” The examiner noted that the Veteran was “forced to take a medical [retirement] form his position as a police officer because of his need for chronic anticoagulation. Currently, he is 68 years old and no longer eligible for work as a police officer.” In June 2018, the Veteran submitted a private vocational assessment from L.B., MSW, LCSW, a licensed Clinical Social Worker. Ms. L.B. noted review of Veteran’s extensive treatments for heart disability and VA examinations of record. She also stated that the Veteran completed two years of college and has no additional education. Id. Upon interview, the Veteran reported the following symptoms prevent him from working: “quick loss of energy with physical tasks, lightheadedness, insomnia, and mental and physical slowness.” Id. He also reported that “he believes his issues with dizziness, drowsiness, insomnia, fatigue, and brain fog are due to both the medications and previous 2 quadruple coronary bypass surgeries.” Id. In her opinion, Ms. L.B. noted that a VA examination had not addressed whether the Veteran’s heart disability prevented him preforming the mental and physical tasks necessary for substantial gainful employment. She also noted that “his heart medications do carry well-known side effects that include sleep disturbance, fatigue and lightheadedness. These symptoms would interfere with [the Veteran’s] ability to do purely sedentary, stress-free work of some kind, even if he could adapt to it” considering the Veteran’s work in security. Id. Thus, she opined that the Veteran heart disability and medications preclude him from maintaining substantially gainful work. In this case, the minimum schedular requirements for TDIU are met, the Veteran is in receipt of a 60 percent rating for heart disability, a 10 percent rating for tinnitus, and a noncompensable rating for surgical scars associated with ischemic heart disease. The Veteran has a combined rating of 60 percent throughout the period on appeal. The remaining question is whether the Veteran’s service-connected disability renders him unemployable. In this case, the record reflects the Veteran’s education includes some post-secondary education, and that he was last employed in 1996 as a police officer. In fact, he took a medical retirement due to his service-connected heart disability. The evidence of record also shows that the Veteran a significant history of heart disease including two bypass surgeries, as noted above. The March 2016 VA examiner also noted that the Veteran requires chronic anticoagulation medication for his heart disability. Id. The Veteran reported that he was unable to work because of his heart disability, and has reported symptoms of dizziness, drowsiness, insomnia, fatigue, and brain fog resulting from medications and prior surgeries for his heart disability. The Board finds that the Veteran’s lay statements are competent, credible and are of probative weight because they are consistent with his treatment record. The Board also accords great weight to the June 2018 vocational opinion provided by Ms. L.B., who opined that the Veteran’s heart disability precluded substantially gainful employment. This report was based on a thorough review of the Veteran’s treatment record, interview of the Veteran, and detailed explanation and analysis of the Veteran’s employability. Additionally, the Board finds that this opinion directly addressed the Veteran’s employability in light of his medical and occupational history including the side effects caused by his heart disability medications. The VA examinations of record indicate that the Veteran’s heart disability limited his ability to work but did not fully address the impact of his service connected ability prevented him preforming the mental and physical tasks necessary for substantial gainful employment. As such, these opinions carry less probative weight. Therefore, the Board finds that based on the Veteran’s lay statements, his private treatment records indicating significant history of heart disease, the VA examinations of record, and the private vocational report, which expressly stated that the Veteran cannot work due to his service-connected disability, all support a finding that the evidence is in equipoise that that the Veteran was unable to secure and follow a substantially gainful occupation by means of his service-connected heart disability. The Board acknowledges, when considering all the evidence of record, some of it is favorable and some of it is unfavorable and thus in equipoise. A claim will be denied only if the preponderance of the evidence is against the claim. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107. Resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU is warranted. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel