Citation Nr: 1806894 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-11 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for coronary artery disease for the period prior to September 3, 2010, and in excess of 30 percent for the period from September 3, 2010 to May 15, 2014. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), to include extraschedular consideration for the period on appeal prior to May 15, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1967 to May 1969. During his period of service, the Veteran earned the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Army Commendation Medal, Good Conduct Medal, and Sharpshooter Badge (Rifle M-14). This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In December 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. At the aforementioned hearing, the Veteran testified to his belief that he is entitled to an earlier effective date for service connection for CAD. The Board notes that the Veteran has not filed a claim as it pertains to that issue and it is not currently before the Board. The Board reiterates that, to the extent the Veteran wishes to file a claim for an earlier effective date for service connection for CAD, he should contact the agency of original jurisdiction (AOJ). By way of history, the Veteran filed a claim for entitlement to service connection for CAD on September 3, 2011. In a September 2011 rating decision, the RO granted entitlement to service connection for CAD, status post coronary artery bypass graft, pursuant to Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III), and assigned a 10 percent evaluation effective September 3, 2011. Subsequently, in an August 2012 rating decision, the RO awarded an increased evaluation of 30 percent, effective from September 3, 2010, one year prior to the date of claim. In a March 2014 rating decision, the RO awarded an earlier effective date of April 24, 2007 for the grant of service connection for CAD, which represented the date in which the Veteran filed an unrelated claim, thereby resulting in VA's receipt of medical records showing a diagnosis of CAD, status post coronary artery bypass graft. The RO assigned an evaluation of 10 percent, effective April 24, 2007, and an evaluation of 30 percent, effective September 3, 2010. The Veteran was later granted a 100 percent rating, effective May 15, 2014, by an August 2014 rating decision. The Veteran agrees with the most recent rating decision of 100 percent; however, he disagrees with the ratings assigned outside of the periods of 100 percent ratings, specifically the 10 percent rating assigned prior to September 3, 2010, and the 30 percent rating assigned from September 3, 2010 to May 15, 2014. Accordingly, the following discussion focuses solely on the aforementioned periods at issue. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to an extraschedular TDIU rating is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period on appeal prior to September 3, 2010, the Veteran's coronary artery disease was manifested by 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 dilatation on electrocardiogram, echocardiogram, or X-ray. 2. For the period on appeal from September 3, 2010 to May 15, 2014, the Veteran's coronary artery disease did not result in more than one episode of congestive heart failure in the past year, or 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. CONCLUSIONS OF LAW 1. Resolving all doubt in favor of the Veteran, for the period on appeal prior to September 3, 2010, the criteria for a disability rating of 30 percent for coronary artery disease have been met. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). 2. For the period on appeal from September 3, 2010 to May 15, 2014, the criteria for a disability rating of in excess of 30 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5103 (2012); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons or bases supporting its decision, there is no requirement that each item of evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board will summarize the evidence as deemed appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran's entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, for the period on appeal prior to September 3, 2010, the Veteran's service-connected CAD was assigned a 10 percent evaluation; and a 30 percent evaluation for the period from September 3, 2010 to May 15, 2014, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005. Diagnostic Code 7005 provides that a 10 percent rating is warranted for documented CAD resulting in workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or a requirement of continuous medication. 38 C.F.R. § 4.104, Diagnostic Code 7005. A 30 percent rating is warranted for documented CAD resulting in 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 dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is warranted for documented CAD resulting in more than one episode of congestive heart failure in the past year, or 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. Id. A 100 percent rating is warranted for documented CAD resulting in chronic congestive heart failure, or 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. Id. Prior to September 3, 2010 In relation to his unrelated claim for benefits, the Veteran submitted VA treatment records indicating a diagnosis of CAD, status post coronary artery bypass graft in January 2005. The Veteran was noted to have chronic dyspnea on exertion, which was a chronic, stable complaint that the Veteran's private specialists monitored. The Veteran also experienced occasional, stable angina, which was followed by the Veteran's cardiologist. The medical evidence of record further noted medication conversion visits. Private treatment records show left ventricular ejection fraction (LVEF) was 65 percent to 69 percent upon testing in March 2010. The remaining record during this period is silent as to additional LVEF or METs testing. Based on this evidence, the Board finds that the Veteran's disability picture for the period prior to September 3, 2010 more nearly approximates that contemplated by the 30 percent rating. The preponderance of the evidence demonstrates that the Veteran required continuous medication. The Veteran also experienced chronic dyspnea on exertion and occasional angina, which was being monitored by his private physicians. See 38 C.F.R. § 4.104, DC 7005. Thus, resolving all reasonable doubt in the Veteran's favor, the criteria for a 30 percent disability rating has been met. September 3, 2010 to May 15, 2014 In September 2011, the Veteran filed a claim for entitlement to service connection for CAD. In support of his claim, the Veteran submitted an ischemic heart disease (IHD) disability benefits questionnaire (DBQ) executed by Dr. L. J. The physician noted diagnoses for IHD, CAD, aortic coronary bypass, and peripheral artery disease. Dr. L. J. further noted that the Veteran's treatment plan included taking continuous medication. A history of percutaneous coronary intervention, myocardial infarction, and coronary bypass surgery was noted. LVEF was 65 percent to 69 percent upon testing in March 2010. The Veteran appeared for a VA examination on October 12, 2011. The examiner noted that the Veteran's treatment plan included taking continuous medication. A history of percutaneous coronary intervention, myocardial infarction, and coronary bypass surgery was noted. In March 2012, the VA examiner supplied an addendum opinion, estimating the level of METs that the Veteran could perform as between 5 and 6. The examiner noted that the Veteran could weed his garden, use a power mower, and do some digging. However, he had to pace himself so he would not become symptomatic. The examiner added that symptoms such as shortness of breath and heaviness in the chest would indicate that the Veteran needed to take a few minutes to rest. Private treatment records show LVEF was as follows: 60 percent upon testing in June 2011, 89 percent upon testing in June 2011, 65 percent to 69 percent upon testing in April 2013, 66 percent upon testing in May 2013, and 60 percent to 64 percent upon testing in March 2014. The medical and lay evidence of record includes VA and private treatment records, as well as the Veteran's own statements. This evidence is consistent with the VA examinations of record. Based on this evidence, the Board finds that the Veteran's disability picture prior to May 15, 2014 more nearly approximates that contemplated by the 30 percent rating. The Veteran's condition has reflected a METs level between 5 and 6, as well as difficulty with exertion, fatigue, and angina. Therefore, the Board finds that a rating higher than 30 percent is not warranted. The next higher rating is 60 percent, and the preponderance of the evidence demonstrates that the Veteran has not been shown to have congestive heart failure, or 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. See 38 C.F.R. § 4.104, DC 7005. METs testing have reflected a level between 5 and 6. The Veteran has not been diagnosed with congestive heart failure, and his left ventricular ejection fraction (LVEF) scores have remained above 50 percent throughout this period. Therefore, the Board concludes that a rating in excess of 30 percent for the period from September 3, 2010 to May 15, 2014 is not warranted. ORDER Entitlement to an evaluation of 30 percent for coronary artery disease, status-post coronary artery bypass graft, prior to September 3, 2010 is granted. Entitlement to an evaluation in excess of 30 percent for coronary artery disease, status-post coronary artery bypass graft, for the period from September 3, 2010 to May 15, 2014 is denied. REMAND When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.34. In other words, VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). However, even where the veteran does not meet the schedular rating requirements, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, for veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), VA is to refer the claim to the Director of Compensation Service, for extra-schedular consideration. Prior to May 15, 2014, the Veteran was service-connected for CAD, status-post coronary artery bypass graft, evaluated as 30 percent disabling; bilateral hearing loss, evaluated as 0 percent disabling; and scar, status-post coronary artery bypass graft, associated with CAD, status-post coronary artery bypass graft, evaluated as 0 percent disabling. The Veteran's combined disability rating was evaluated at 30 percent. Accordingly, because the Veteran did not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he did not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). In September 2011, the Veteran submitted an ischemic heart disease (IHD) disability benefits questionnaire (DBQ) in relation to his claim for entitlement to service connection for CAD. Dr. L. J. opined that the Veteran's heart condition affected his ability to work because he could not walk well enough. The Veteran appeared for a VA examination on October 12, 2011. The examiner indicated that the Veteran's heart condition affected his ability to work, as he was easily fatigued and lacked stamina for regular activities. The Veteran appeared for a VA examination on May 15, 2014. The Veteran reported that stressful jobs would cause pain and tightness in his chest. The Veteran further reported that he would get shortness of breath with prolonged talking or walking more than sixty feet. He often had to take breaks when participating in any activities that required physical exertion, like mowing the lawn. The Veteran testified at a Board hearing in June 2017. He stated that he was asked to retire in 2005 because of his heart condition. The Board finds that the evidence of record as discussed above suggests that the Veteran's service-connected CAD rendered him unable to secure and maintain a substantially gainful occupation for the period on appeal prior to May 15, 2014. As such, referral to the Director of Compensation Service for extraschedular consideration is warranted. See 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Refer the Veteran's case to the Director of Compensation Service for consideration of the assignment of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. A copy of the Director's decision must be associated with the claims file. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs