Citation Nr: 20004813 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 17-61 761 DATE: January 21, 2020 ORDER Entitlement to a disability rating in excess of 60 percent for coronary artery disease (CAD) is denied. Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with alcohol use disorder is denied. Entitlement to an effective date earlier than February 9, 2012, for a 60 percent disability rating for CAD is denied. Entitlement to an effective date earlier than January 12, 2011, for a 70 percent disability rating for PTSD with alcohol use disorder is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s CAD has been manifested without congestive heart failure, with onset of cardiac symptoms at greater than 3 METs, and with a left ventricular ejection fraction of greater than 30 percent. 2. The severity, frequency, and duration of the Veteran’s PTSD with alcohol use disorder symptoms did not more closely approximate total occupational and social impairment. 3. The Veteran’s 60 percent disability rating for CAD was established by rating decision in July 2012, and the Veteran’s August 2017 notice of disagreement (NOD) is not timely with respect to this decision. 4. The Veteran’s disability rating for his PTSD with alcohol use disorder was established by a July 2012 rating decision, and the Veteran’s August 2017 NOD is not timely with respect to this decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 60 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 2. The criteria for a disability rating in excess of 70 percent for PTSD with alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for an effective date earlier than February 9, 2012 for the grant of a 60 percent rating for CAD have not been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. 4. The criteria for an effective date earlier than January 12, 2011 for the grant of a 70 percent rating for PTSD with alcohol use disorder have not been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1967 to March 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision. The Veteran initially requested a hearing before the Board when he filed his substantive appeal in November 2017 but did not attend the hearing that was scheduled in August 2019. He has not provided good cause for his non-attendance. Consequently, despite his December 2019 statement that he still desires a hearing (which contradicts a November 2019 statement where he asserted he was withdrawing his claim for a hearing), his hearing request is deemed withdrawn, and no further hearing will be scheduled. 38 U.S.C. §§ 7102, 7105(a), 7105A, 7107; 38 C.F.R. § 20.702(d). Increased Rating 1. Entitlement to a disability rating in excess of 60 percent for CAD The Veteran asserts that his CAD has become more severe. The Veteran is unspecific in his reasoning as to why he should be entitled to a higher disability rating for this condition. However, the Veteran’s April 2017 correspondence appears to indicate that he believes he should be entitled to a higher disability rating because his condition cannot be cured. The Veteran’s condition is rated under Diagnostic Code 7005. Under this diagnostic code, in relevant part, a 60 percent disability rating is assigned where there is more than one episode of acute congestive heart failure in within the preceding year; or where a workload of greater than 3 METs but less than 5 METs results in cardiac symptoms such as dyspnea, fatigue, angina, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent disability rating is assigned where there is chronic congestive heart failure; or where a workload of 3 METs or less results in cardiac symptoms such as dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7005. Here, the only evidence that is responsive to the rating criteria comes from the February 2017 compensation and pension (C&P) examination. There was no history of congestive heart failure at this examination. The EKG that accompanied this examination documented an ejection fraction of 65 percent (a typo on the examination report indicates that it was 6 percent, but the EKG report itself documents the ejection fraction of 65 percent). Based on an interview of the Veteran regarding his activities, cardiac symptoms of dyspnea and fatigue were noted to become manifest with a workload of 3 but less than 5 METs. The examiner indicated that the Veteran’s interview based METs were the measure that most accurately reflected his condition. Indeed, the interview based METs are also the most advantageous to the Veteran as the onset of symptoms with a workload of 3 to 5 METs meets the criteria for a 60 percent rating where the ejection fraction of 65 does not. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7005. The Veteran’s C&P examination and his medical records more generally do not provide evidence chronic congestive heart failure, cardiac symptoms with a workload of less than 3 METs, or a lower left ventricular ejection fraction. Consequently, the criteria for a 100 percent disability rating are not met. The only specific argument for a higher rating that the Veteran makes is that his condition cannot be cured or reversed. This assertion is true, but the rating criteria do not contemplate compensation on this basis. Both this argument and the reasonable doubt doctrine have been considered. Nevertheless, the criteria for a higher rating are not met and the appeal must be denied. 2. Entitlement to a disability rating in excess of 70 percent for PTSD with alcohol use disorder The Veteran asserts that his PTSD with alcohol use disorder has become worse. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. The evidence regarding the Veteran’s psychiatric condition, including during the year that preceded the claim is relatively sparse. A July 2016 VA treatment record indicates that the Veteran had depressed mood, was feeling down due to his mobility problems, and that his worsening mood was correlated with his drinking but improved when he could see his wife. He was also noted to have a flat affect. Beyond that treatment record, the Veteran’s many physical disabilities appear to have become overwhelming during the appeal period and to have dominated the vast bulk of his treatment records. Primarily, his psychiatric treatment since then has comprised the continuing use of his prescribed medication, and mental status examinations conducted as routine parts of physical medical procedures where the Veteran generally denied suicidal ideation. The Veteran did not attend an examination scheduled to evaluate his psychiatric condition. The Veteran disputes this and asserts that he did in fact attend the examination. VA attempted to resolve this dispute by offering the Veteran a further examination, which the Veteran declined to attend. The only other source of information regarding the Veteran’s symptoms during this period comes from letters written directly by the Veteran, such as the letters he wrote in April 2017. In these he complains of frequent nightmares and the inability to forget his wartime experiences. These symptoms do not meet the criteria for a 100 percent disability rating. The symptoms described do not meet or approximate the symptoms described in the criteria for a 100 percent disability rating, and the severity, frequency, and duration of his other symptoms do not rise to the level of total occupational and social impairment. Not only are the symptoms noted relatively limited to nightmares, unpleasant memories, and depressed mood, his depressed mood is specifically noted to be alleviated by social contact – with his wife. Consequently, the Board finds that the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent rating are not met and the appeal must be denied. Effective Date 3. Entitlement to an effective date earlier than February 9, 2012, for the grant of a 60 percent disability rating for CAD and for an effective date earlier than January 12, 2011 for the grant of a 70 percent rating for PTSD with alcohol use disorder These issues arise from the same set of facts. The Veteran’s August 2017 NOD indicated that he disagreed with the effective date assigned for the increased ratings for his awards for PTSD with alcohol use disorder and CAD. The increases to these awards and the effective dates of January 12, 2011 and February 9, 2012, respectively, were assigned in a July 2012 rating decision. This decision was generated in response to an earlier NOD with the ratings assigned for his disabilities and was accompanied by a statement of the case (SOC) sent the following month, August 30, 2012. The Veteran attempted to make an appeal from that decision by filing correspondence in lieu of a Form 9 on November 19, 2012. A January 2013 decisional letter determined that this correspondence was untimely filed. That letter decision advised the Veteran of his right to appeal the issue of whether his appeal was timely filed, and a form for disagreeing with that determination was included in that correspondence. The Veteran never filed a disagreement with the determination that his November 19, 2012 correspondence was determined to be untimely to serve as a substantive appeal from the August 2012 decision and SOC. As a result of the determination that a timely appeal was not filed, the effective dates assigned in the July 2012 rating decision accompanying the August 2012 SOC became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran’s August 2017 NOD, where he indicated that he disagreed with the effective dates assigned for his conditions, is similarly too late to timely disagree with the effective dates assigned in July and August 2012. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. Consequently, the Veteran’s claim for earlier effective dates cannot be further addressed as his notice of disagreement with those decisions was untimely. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven Johnston, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.