Citation Nr: 20008191
Decision Date: 01/30/20	Archive Date: 01/30/20

DOCKET NO. 10-48 837
DATE: January 30, 2020

ORDER

The claim of entitlement to service connection for a back disability is denied. 

The claim of entitlement to service connection for an abdominal aortic aneurysm disability is denied. 

The claim of entitlement to an evaluation in excess of 30 percent for the period prior to September 19, 2011 for a coronary artery disease (CAD) disability is denied. 

The claim of entitlement to an evaluation in excess of 60 percent for the period beginning November 1, 2011 for a CAD disability is denied. 

The claim of entitlement to a compensable evaluation for a hypertension disability is denied. 

The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to January 1, 2014 is denied.

FINDINGS OF FACT

1. The Veteran’s current back disability was not incurred in service, was not related to active service, and did not manifest within a year of active service.

2. The Veteran’s abdominal aortic aneurysm disability was not incurred in service, was not related to active service, did not manifest within a year of active service, and was not the result of a service-connected disability. 

3. For the period prior to January 12, 1998, the Veteran’s CAD disability was manifested by no worse than typical coronary occlusion or thrombosis with a history of substantiated anginal attack and ordinary manual labor feasible; available medical evidence did not reflect repeated anginal attacks making more than light labor infeasible; the evidence of record did not show chronic residual findings of congestive heart failure, angina on moderate exertion, or more than sedentary employment precluded. 

4. For the period between January 12, 1998 and September 19, 2011, the Veteran did not experience acute congestive heart failure; his CAD disability did not manifest with an estimated workload of less than 5 METs; the evidence of record did not show left ventricular dysfunction with an ejection fraction of less than 50 percent. 

5. For the period beginning November 1, 2011, the Veteran’s CAD disability has not been manifested by chronic congestive heart failure, or an estimated workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent.  

6. During the period on appeal, the Veteran’s diastolic blood pressure has not been predominantly 100 or more; his systolic blood pressure has not been predominantly 160 or more; and he has not had the minimum evaluation for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control.

7. For the period prior to January 1, 2014, the Veteran’s service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 4.3 (2018). 

2. The criteria for service connection for an abdominal aortic aneurysm disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310, 4.3 (2018).

3. The criteria for an evaluation in excess of 30 percent for the period prior to September 19, 2011 for a CAD disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3,159, 3.321, 3.816, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.100, 4.104, Diagnostic Code (DC) 7005 (1997 and 2018). 

4. The criteria for an evaluation in excess of 60 percent for the period beginning November 1, 2011 for a CAD disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.816, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, DC 7005 (1997 and 2018). 

5. The criteria for a compensable evaluation for a hypertension disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, DC 7101 (2018).

6. The criteria for entitlement to a TDIU for the period prior to January 1, 2014, have not been met. 38 U.S.C. §§ 5107 (2012); 38 C.F.R. § 3.340, 3.341, 4.3, 4.16, 4.19 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the U.S. Army from October 1964 to November 1987.  The Veteran contends that he is entitled to service connection for a back disability and an abdominal aortic aneurysm disability.  For his service-connected coronary artery disease (CAD) disability, he contends that he is entitled to an evaluation in excess of 30 percent for the period prior to September 19, 2011 and an evaluation in excess of 60 percent for the period beginning November 1, 2011.  He also contends he is entitled to a compensable evaluation for a hypertension disability.  Finally, the Veteran also claims that he is entitled to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to January 1, 2014. 

This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from March 2010 and April 2012 by a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran filed a notices of disagreement (NOD) in June 2010 and September 2012.  Statements of the case (SOC) were issued in October 2010 and February 2013, and the Veteran perfected his appeals in December 2010 and March 2013.  Supplementary statements of the case (SSOC) were issued in March 2016 and October 2019. 

The Veteran testified before a Veterans Law Judge (VLJ) in October 2014.  A transcript of the hearing is of record.  In a September 2017 letter, the Board informed the Veteran that the hearing VLJ was no longer at the Board and inquired if he desired another hearing. See 38 C.F.R. § 20.707 (2018).  In October 2017, the Veteran’s attorney indicated that the Veteran did not want a new Board hearing.

This case was previously before the Board in December 2015.  In the December 2015 Board decision, the Board remanded the case back to the RO for further development.  Specifically, for the claims of service connection for a back disability and an abdominal aortic aneurysm disability, as well as the claim of increased rating for a hypertension disability, the Board found that the medical evidence of record was insufficient to decide the claims at issue, and the Board remanded these issues to obtain new VA examinations and medical opinions.  The Board also remanded the issue of entitlement to a TDIU, as it is inextricably entwined with the other claims being remanded.  Concerning the Veteran’s service-connected CAD disability, the Board denied the Veteran’s claims of entitlement to an evaluation in excess of 30 percent for the period prior to September 19, 2011 and entitlement to an evaluation in excess of 60 percent for the period beginning November 1, 2011.

The Veteran appealed the Board’s December 2015 decision to the United States Court of Appeals for Veterans Claims (Court).  In January 2017, the Court issued a Memorandum Decision, in which the Court found that the Board did not provide adequate statement of reasons or basis for not remanding the matter of referral for extraschedular consideration of the Veteran’s service-connected CAD disability as inextricably intertwined with the other matters the Board remanded.  The Court vacated that part of the Board’s December 2015 decision and remanded the matter to the Board for further adjudication. 

The case was returned to the Board in November 2017.  In the November 2017 decision, the Board again remanded the claims at issue.  For the issues of service connection for a back disability and an abdominal aortic aneurysm disability, the Board found that the medical opinions of record were insufficient to decide the claims at issue, and the Board again remanded the issues to obtain new VA medical opinions.  For the issue of increased rating for a hypertension disability, the Board found that new evidence had been associated with the record since the last March 2016 SSOC; thus, a new SSOC was needed.  The Board also remanded the issue of entitlement to TDIU to obtain more information about the Veteran’s employment history.  Finally, the Board deferred the issue of extraschedular consideration of the Veteran’s CAD disability pending further action on the issue of entitlement to TDIU. 

The Veteran underwent a new VA examination for his back disability in August 2018, and the examiner provided a related medical opinion.  A VA examiner also provided a new medical opinion concerning the Veteran’s abdominal aortic aneurysm disability in July 2018.  In August 2018, the Veteran’s former employer submitted further information concerning the Veteran’s employment from August 2010 to May 2017.  As noted earlier, the RO issued an SSOC in October 2019.  Thus, the Board finds that the remand directives from the November 2017 Board decision were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998).  

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2) (2012).

I.	Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service’- the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

Certain chronic diseases may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 

Even if the presumptive paths for establishing service connection are not available for the Veteran’s disability, the claim could be granted if the three elements of direct service connection are shown by an equipoise standard of evidence. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

A.	Back Disability

The Veteran contends that he is entitled to service connection for a back disability (previously claimed as spondylostenosis / lumbar disc disease). 

At the August 2018 VA examination for the Veteran’s back condition, the Veteran was diagnosed with degenerative arthritis of the spine.  At a February 2016 VA examination, the Veteran was also diagnosed with degenerative disc disease of the lumbar spine (lumbar spondylosis) with intervertebral disc disease and spinal stenosis.   Thus, concerning the Veteran’s back, he fulfills the first requirement of service connection – a current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The next question in this case is whether the Veteran had an incurrence or aggravation of a back disease or injury during his active service. 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Looking at the Veteran’s service treatment records (STRs), in the Reports of Medical Examination from the Veteran’s October 1964 induction and at various periodic examinations thereafter, the examiners marked the Veteran’s spine and other musculoskeletal conditions as normal.  In an April 1967 Report of Medical History, the Veteran reported that he had never experienced any swollen or painful joints; arthritis or rheumatism; bone, joint, or other deformity; or recurrent back pain.   

The only mention of issues with the Veteran’s back during active service is a note in his September 1987 Report of Medical History from separation where he mentioned that he had experienced deep pain in his back.  However, in the same Report of Medical History, the Veteran reports that he had not ever experienced recurrent back pain.  In the September 1987 Report of Medical Examination from separation, the examiner found that the Veteran’s spine and other musculoskeletal conditions were normal.  There is no other complaint, diagnosis, or treatment of back problems during the Veteran’s active service.  Thus, even if the Veteran experienced back pain at some point during active service, there is no indication in the record that the Veteran incurred any chronic or long-term back conditions during active service. 

There is also no evidence in the record of any complaint, diagnosis, or treatment of back problems in the years immediately following the Veteran’s active service.  

At a November 2009 VA examination, the Veteran stated that his back condition had its onset in the early 1980s during active service.  However, these assertions are not credible due to inconsistency with other evidence of record, including the Veteran’s STRs as described above.  In weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995).  

Likewise, at the August 2018 VA examination, the Veteran stated that his back started bothering him around 1974 or 1975.  However, this statement is not credible due to inconsistency with his previous statements and the medical evidence of record, as described above.  

Thus, the Veteran’s statements regarding the onset of his claimed back disability are not entitled to significant probative weight.  

The earliest post-service treatment of the Veteran’s back on record is a July 2007 private treatment record from Bertram Total Joint Center (Bertram) in which the examiner reported an impression of severe spinal stenosis.  In another treatment record from Bertram a few days later, the examiner found that the Veteran had a multilevel, multifactorial spondylostenosis. 

The Board also notes that, at the October 2014 Board hearing, the Veteran stated that he had no in-service back injuries that he could recall.  When asked how long after military service he started having issues with his back, the Veteran replied that he noticed that his back was interfering with his day-to-day activities in 2007 or 2008.  

There is no objective evidence of record showing any complaint, diagnosis, or treatment of a back condition the 20 years between the Veteran’s November 1987 separation from active service and the above-mentioned July 2007 private treatment where he was diagnosed with severe spinal stenosis.  Under Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim such that it weighs against the claim.

In an October 2014 Nexus Statement, the Veteran’s private physician, Dr. W., opined that the Veteran’s current disabilities (including back pain, neuropathy, and coronary artery disease) are caused by, the result of, or related to an onset or events while in service.  However, Dr. W. provided no rationale for his opinion, other than to note that he had reviewed the Veteran’s treatment records since separation from service.  Additionally, it is unclear how much, if any, of the Veteran’s service treatment records or other military records Dr. W. considered in making this opinion.  Thus, Dr. W.’s opinion is not entitled to significant probative weight in deciding this appeal. 

In an Addendum Opinion related to a November 2009 VA examination, the VA examiner determined that it is not likely that the Veteran’s claimed back condition is the same as or the result of the deep back pain shown during his active duty.  The VA examiner explained that there is no medical documentation of a lumbar condition or injury during active service.  The mention of deep back pain on the September 1987 separation examination did not mean that the pain was due to a lumbar condition; it only notes pain somewhere in the back. 

At a February 2016 VA examination, the VA examiner found it is less likely than not that the Veteran’s back condition had its onset during service or is causally or etiologically related to an in-service incident or injury.  The VA examiner explained that review of the Veteran’s STRs showed a one-time complaint of acute or deep back pain on his September 1987 separation examination, in which he also stated that he did not have recurrent back pain.  The separation examination noted a normal spine examination with no diagnosis of a back condition by the examiner.   This back pain was acute and transitory, and it resolved in a short time.  Though the Veteran worked many years as a club manager and food service specialist during service, there is no documentation in the STRs to show any back condition as a result of his job.  Also, the examiner noted that the Veteran’s medical records show he was diagnosed with degenerative joint disease of lumbar spine in 2007. 

At the Veteran’s August 2018 VA examination, the VA examiner determined that the Veteran’s claimed back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.  The VA examiner explained that the Veteran’s STRs are silent for any back injuries or problems.  The Veteran reported on his September 1987 separation examination that he had not experienced recurrent back pain, and his physical examination documents a normal spine at the time of his retirement from active duty.  Subsequent VA and private medical records are silent for any complaints of back problems until 2007, which was 20 years after his discharge from active service.  The Veteran was initially evaluated in July 2007 for right leg pain following a stress fracture of the knee and found to have degenerative joint disease of the lumbar spine, as well as leg length discrepancy.  Subsequent MRI’s of the lumbar spine demonstrated advancing degenerative disc disease with multilevel spondylosis, disc protrusions or bulges, foraminal stenosis, and mild dextroscoliosis.  The examiner further explained that these are not separate conditions but rather the result of continuing degeneration of the discs of the spine.  Degenerative disc disease is a result of water loss and age-related wear and tear. Scoliosis (curvature of the spine) can either be congenital or acquired.  The examiner found that, since the Veteran’s mild dextroscoliosis was not noted on earlier physical examinations or MRI studies, the scoliosis is most likely a new development resulting from the degenerating discs. 

The Board acknowledges the Veteran’s contention that his claimed back disability is related to his active service.  However, the Veteran, as a layperson, is not competent to give a medical opinion on the etiology or cause of his claimed back disability.  The Veteran lacks the adequate medical expertise to render a medical opinion as to the etiology or cause of his diagnosed disabilities in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999).  As such, the Veteran’s assertions as to the etiology of his claimed back disability are not competent or probative evidence for deciding this appeal.  

Moreover, the Board finds the opinions of the October 2014, February 2016, and August 2018 VA examiners to be the more probative evidence of record concerning whether the Veteran’s current claimed back disability is causally related to active service.  The VA examiners’ rationales are logical and well-reasoned and based on consideration of the Veteran’s claims file, reported history, service treatment records, and post-service history, as well as relevant medical literature.  Thus, the Board is satisfied that the October 2014, February 2016, and August 2018 VA examiners’ opinions are competent, credible, persuasive, and probative for deciding this appeal.

Based on the above, the Board finds the preponderance of the evidence is against a grant of service connection for the Veteran’s claimed back disability.  Therefore, the Veteran’s claim of entitlement to service connection for a back disability must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.     

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

B.	Abdominal Aortic Aneurysm Disability

The Veteran contends that he is entitled to service connection for an abdominal aortic aneurysm disability.  The Veteran asserts that his claimed abdominal aortic aneurysm disability is secondary to his already service-connected hypertension disability or his service-connected coronary artery disease (CAD) disability.  Alternatively, the Veteran has also asserted that his claimed abdominal aortic aneurysm disability is due to in-service exposure to herbicides, such as Agent Orange. 

At a May 2008 VA examination, the Veteran was diagnosed with an abdominal aortic aneurysm.  At VA examinations in February 2015 and February 2016, the Veteran was diagnosed with status-post aortic aneurysm repair from April 2014.  Thus, the Veteran fulfills the first requirement of service connection – a current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The next question in this case is whether the Veteran had an incurrence or aggravation of an abdominal aortic aneurysm during his active service. 38 C.F.R. § 3.304(f); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

The Veteran’s service treatment records (STRs) are silent of any complaints, diagnosis, or treatment of an abdominal aortic aneurysm condition during active service.  In the Reports of Medical Examination from the Veteran’s October 1964 induction and at various periodic examinations thereafter, the examiners marked condition of the Veteran’s heart, vascular system, abdomen, and viscera as normal.  In an April 1967 Report of Medical History, the Veteran reported that he had never experienced any pain or pressure in his chest or any palpitation or pounding heart. 

An April 1988 chest x-ray shows that the Veteran had a blocked upper artery and mildly unwound aorta.  However, at the Veteran’s October 2019 VA examination, the VA examiner explained that this is a normal anomaly, and it is a completely different condition than an aortic aneurysm.  Also, while the unwound aorta is in the chest, the aortic aneurysm is infrarenal in the abdominal part of the descending aorta.  

In the Veteran’s September 1987 Report of Medical History from his separation examination, the Veteran reported that he had experienced pain or pressure in his chest, palpitation or pounding heart, and heart trouble.  However, in the related September 1987 Report of Medical Examination, the examiner found that the Veteran’s heart, vascular system, abdomen, and viscera were normal.  The Board also notes that the Veteran is service-connected for coronary artery disease (CAD) and hypertension. 

There is no evidence of record concerning any abdominal aortic aneurysm in the years immediately following the Veteran’s service.  

The earliest post-service treatment of the Veteran’s back on record is a July 2007 private treatment record from Bertram Total Joint Center (Bertram) in which the examiner reported an impression of an aortic aneurysm of about 3.5cm.  In another treatment record from Bertram a few days later, the examiner noted an elongated fusiform infrarenal abdominal aortic aneurysm.  

There is no objective evidence of record showing any complaint, diagnosis, or treatment of an abdominal aortic aneurysm in the 20 years between the Veteran’s November 1987 separation from active service and the above-mentioned July 2007 private treatment where he was diagnosed with an aortic aneurysm.  Under Maxson v. West, 12 Vet. App. 453 (1999), aff’d, 230 F.3d 1330 (Fed. Cir. 2000), a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim such that it weighs against the claim.

At a February 2016 VA examination, the VA examiner determined that the Veteran’s diagnosis of status-post aortic aneurysm repair is less likely as not (less than 50 percent probability) incurred in or caused by active service.  The VA examiner explained that review of the Veteran’s STRs showed no documentation of an aortic aneurysm condition; and there was no documentation of an aortic aneurysm condition in the years immediately following the Veteran’s 1987 separation from active service.  The examiner noted that the Veteran was first noted to have an aortic aneurysm in July 2007, which is 20 years after active service.

In a July 2018 Medical Opinion, the VA examiner again found that it is less likely as not (less than 50 percent probability) that the Veteran’s aortic aneurysm first manifested in service or is otherwise related to service.  The VA examiner noted that review of service medical record shows no documentation of any aortic aneurysm condition. 

The Board has also considered whether the Veteran is entitled to service connection for an abdominal aortic aneurysm disability on a secondary basis.  As noted earlier, the Veteran asserts that his claimed abdominal aortic aneurysm disability is secondary to his already service-connected hypertension disability or his service-connected coronary artery disease (CAD) disability.  

Service connection may be granted on a secondary basis for a disability that is proximately due to, aggravated by, or otherwise the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). 

At a May 2008 VA examination, the examiner determined that it is less likely as not (less than 50 percent probability) that the Veteran’s abdominal aortic aneurysm was caused by or the result of hypertension.  The examiner explained that the relevant medical literature states that hypertension has been cited as an etiological factor in aneurysms that are usually arteriosclerotic in origin.  The examiner stated that, while the Veteran has arteriosclerosis with associated CAD and hypertension, it is uncertain to what extent, if any, that the hypertension may have contributed to the development of abdominal aortic aneurysm.  

At a February 2015 VA examination, the VA examiner found that the Veteran’s aortic aneurysm is less likely than not (less than 50 percent probability) proximately due to, aggravated by, or the result of the Veteran’s service-connected CAD condition.  The VA examiner explained that medical literature does not support the assertion that the Veteran’s CAD can cause or aggravate the Veteran’s aortic aneurysm condition, as these conditions are anatomically, pathophysiologically, and etiologically not causally related.

At a February 2016 VA examination, the VA examiner determined that it is less likely than not that the Veteran’s abdominal aortic aneurysm was caused or aggravated by the Veteran’s service-connected hypertension and/or his service-connected CAD.  The VA examiner explained that peer-reviewed medical literature supports that Veteran’s claimed abdominal aortic aneurysm is caused by aneurysmal degeneration of the abdominal aorta, which is a multifactorial, systemic process generally felt to be due to alterations in vascular wall biology leading to a loss of vascular structural proteins and wall strength.  Peer-reviewed medical literature supports that expansion tends to be more rapid in smokers; and the Veteran’s medical record shows that the Veteran has history of chronic smoking in the past.  He also has hyperlipidemia and is a male.  All of these are proven risk factors for abdominal aortic aneurysm.  

The February 2016 VA examiner found that peer-reviewed medical literature does not support finding that the Veteran’s service-connected hypertension (which has been well controlled) or service-connected CAD can cause or aggravate an abdominal aneurysm condition.  Rather, peer-reviewed medical literature supports that the claimed abdominal aortic aneurysm condition and the service-connected hypertension and CAD disabilities are pathophysiologically, etiologically, and anatomically different; and they cannot be causally related. 

In the July 2018 Medical Opinion, the VA examiner determined that it is less likely as not (less than 50 percent probability) that the Veteran’s aortic aneurysm was caused by or aggravated by the service-connected hypertension and/or CAD disabilities.

In the November 2017 Board remand, the Board requested that the examiner consider certain medical sources – specifically, articles in the Merck Manual – that may show some evidence that hypertension and atherosclerosis are factors that may cause aortic aneurysm.  In examining these sources, the July 2018 VA examiner found that the relevant Merck Manual article does not specifically state that abdominal aortic aneurysms were usually arteriosclerotic in origin.  Rather, the article mentioned that several conditions and factors that can damage the walls of the aorta” and atherosclerosis is one of them.  Additionally, the VA examiner observed that the article was outdated, as it was from March 2012.  According to more recent medical literature, including an article that was last updated April 2018 from UpToDate, atherosclerosis is only one of several risk factors and not a cause of abdominal aortic aneurysm.  The recent medical literature states that the pathophysiology responsible for abdominal aortic aneurysm formation is recognized to be distinct from atherosclerosis. 

The July 2018 VA examiner also noted that another recent article states that atherosclerosis is one of several risk factors for development of an aortic aneurysm; however, CAD does not cause or aggravate atherosclerosis.  Thus, according to relevant medical literature, the Veteran’s service-connected CAD disability and his aortic aneurysm are two separate conditions with different anatomical locations and pathophysiologies; and there is no cause or effect relationship that can be established between these two conditions.  There is no metanalysis to prove any association between these two conditions.  Furthermore, an article from the Mayo Clinic noted hypertension is one of the risk factors for abdominal aneurysm but not a cause.  Based on the relevant medical literature, the July 2018 VA examiner found that uncontrolled hypertension is one of the factors that can cause progression of the aneurysm; but the Veteran’s hypertension, which is documented to be well controlled, would not cause an aortic aneurysm disability. The Veteran’s well controlled hypertension cannot aggravate the Veteran’s aortic aneurysm because his blood pressure is normal and there is no increased sheer generated to cause any damage on the lining of the abdominal aorta. 

Thus, based on the above, the preponderance of the evidence of record is against finding that the Veteran’s claimed abdominal aortic aneurysm disability is proximately due to, aggravated by, or otherwise the result of an already service-connected disability, such as hypertension or CAD. See 38 C.F.R. § 3.310(a).  

The Veteran has also asserted that his abdominal aortic aneurysm may have been the result of exposure to herbicides, such as Agent Orange, during his active service.  An April 2012 VA 21-3101 Request for Information reflects that he served in the Republic of Vietnam from July 5, 1969 to July 4, 1970 and from December 8, 1972 to April 2, 1973.  His Form DD214 Certificate of Release or Discharge from Active Duty indicates that he earned a Vietnam Service Medal with 4 Bronze Service Stars and a Vietnam Cross of Gallantry with Palm. 

Presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and the herbicide exposure.  VA has determined that a positive association exists between exposure to herbicides and the subsequent development of the following conditions: chloracne or other acneform disease consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e).  An abdominal aortic aneurysm is not listed as subject to this presumption.

At the February 2016 VA examination, the VA examiner found that it is less likely than not (less than 50 percent probability) that the Veteran’s abdominal aortic aneurysm is the result of a disease or injury incurred during active service, including exposure to herbicides such as Agent Orange.  The VA examiner explained that abdominal aortic aneurysm is not a condition recognized by VA to be one of the presumptive conditions caused by Agent Orange exposure.  Additionally, the relevant peer-reviewed medical literature does not support the assertion that the Veteran’s abdominal aortic aneurysm can be caused by Agent Orange exposure.  

Instead, the February 2016 VA examiner found that the medical record shows the Veteran has other contributing risk factors for his abdominal aortic aneurysm, such as chronic smoking and being male.  Peer-reviewed medical literature supports finding that chronic smoking, hyperlipidemia, and being male are leading risk factors for the development of abdominal aortic aneurysm.

No other evidence of record demonstrates a causal link between the Veteran’s claimed in-service Agent Orange exposure and his claimed abdominal aortic aneurysm disability.  

The Board acknowledges the Veteran’s contention that his claimed abdominal aortic aneurysm disability is related to his active service or to a service-connected disability.  However, the Veteran, as a layperson, is not competent to give a medical opinion on the etiology or cause of his claimed aortic aneurysm disability.  The Veteran lacks the adequate medical expertise to render a medical opinion as to the etiology or cause of his diagnosed disabilities in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999).  As such, the Veteran’s assertions as to the etiology of his claimed aortic aneurysm disability are not competent or probative evidence for deciding this appeal.  

Moreover, the Board finds the opinions of the February 2015, February 2016, and July 2018 VA examiners to be the more probative evidence of record concerning whether the Veteran’s claimed aortic aneurysm disability is causally related to active service or to a service-connected disability.  The VA examiners’ rationales are logical and well-reasoned and based on consideration of the Veteran’s claims file, reported history, service treatment records, and post-service history, as well as relevant medical literature.  Thus, the Board is satisfied that the February 2015, February 2016, and July 2018 VA examiners’ opinions are competent, credible, persuasive, and probative for deciding this appeal.

Based on the above, the Board finds the preponderance of the evidence is against a grant of service connection on a direct, secondary, or presumptive basis for the Veteran’s claimed abdominal aortic aneurysm disability.  Therefore, the Veteran’s claim of entitlement to service connection for an abdominal aortic aneurysm disability must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.     

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

II.	Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.   

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.  It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.  

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

A.	Hypertension Disability

The Veteran contends he is entitled to a compensable evaluation for a hypertension disability.  

As background for this issue, in a July 1988 rating decision, the RO granted the Veteran service connection for a disability of lesion, LAD, and hypertension with a noncompensable (0 percent) evaluation effective December 1, 1987.  The Veteran’s hypertension was rated together with the lesion and LAD since the rating schedule criteria in effect at that time required that these disabilities be rated together.    

In a February 2013 rating decision, the Veteran was granted an increased rating of 30 percent for coronary artery disease (CAD) (previously evaluated as ischemic heart disease and lesion, LAD), effective December 1, 1987.  The Veteran was also granted a temporary evaluation of 100 percent, effective September 19, 2011; and an evaluation of 60 percent, effective November 1, 2011.  

The Veteran’s service-connected hypertension was rated together with his ischemic heart disease from December 1, 1987 to January 12, 1998.  At that point, the cardiovascular rating schedule changed, and the Veteran was then entitled to a separate evaluation of 0 percent for his hypertension disability.  Thus, the Veteran currently has a noncompensable (0 percent) evaluation for a hypertension disability, effective January 12, 1998. 

The current claim of entitlement to an increased rating for a hypertension disability grew out of an October 2009 claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 

Under Diagnostic Code (DC) 7101, a disability rating of 60 percent for hypertension requires diastolic blood pressure predominantly 130 or more.  A rating of 40 percent requires diastolic blood pressure predominantly 120 or more.  A rating of 20 percent requires diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more.  A rating of 10 percent requires diastolic blood pressure predominantly 100 or more, or systolic blood pressure predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101.  

At a November 2009 VA examination, the examiner noted two systolic and diastolic blood pressure readings.  The first blood pressure reading was 158/110; and the second reading was 140/92.  The Veteran was noted to have just had a cup of coffee before the above first reading.  The VA examiner also noted that the Veteran’s VA medical record shows a blood pressure reading from August 27, 2009 of 128/88 and a blood pressure reading from February 20, 2008 of 118/68.  The Veteran stated that his blood pressure is controlled on medication.

At a February 2016 VA examination, the Veteran had systolic blood pressure readings averaging 118 and diastolic blood pressure readings averaging 74.  Specifically, the examiner noted three systolic and diastolic blood pressure readings.  The first blood pressure reading was 120/80; the second reading was 123/67; and the third reading was 112/75.  The Veteran’s treatment plan was noted to include taking continuous medication for hypertension, and the examiner stated that the Veteran’s hypertension did not impact his ability to work.  The examiner noted that review of the Veteran’s medical record shows that the Veteran’s hypertension is well controlled.

At another VA examination in July 2016, the Veteran’s average blood pressure reading was 146/75.  The examiner also reported three blood pressure readings of 141/71, 151/78, and 147/76. 

The VA examiners’ findings described above are largely consistent with the other medical evidence of record from the period on appeal.  For example, in a March 2009 Naples Physician Note, the Veteran’s blood pressure was noted to be 120/78.  In a June 2010 Naples Physician Note, the Veteran’s blood pressure was 128/68.  In a February 2016 Primary Care Physician Note, the Veteran’s blood pressure was 103/73.  In a June 2016 Primary Care Physician Note, the Veteran’s blood pressure was 121/63.  In a September 2016 Primary Care Physician Note, the Veteran’s blood pressure was 114/67.  In a December 2016 H&P Note, the Veteran’s blood pressure was 122/79; in a June 2017 Primary Care Physician Note, the Veteran’s blood pressure was 116/77; in a December 2017 H&P Note, the Veteran’s blood pressure was 134/86; and in a December 2018 H&P Note, the Veteran’s blood pressure was 126/60.  The Veteran’s medical records consistently demonstrate that the Veteran’s hypertension has been well-controlled with medication throughout the period on appeal. 

The Board notes that, in a February 8, 2019 General Medicine Outpatient Note, the Veteran’s blood pressure was noted to be 176/97.  Similarly, a few days later, in a February 20, 2019 General Medicine Outpatient Note, the Veteran’s blood pressure was noted to be 192/120.  However, the Veteran was noted to be off his hypertension medication.  Thus, the Board finds that the blood pressure readings from that day were an outliers that were not typical for the Veteran.   

After a review of the Veteran’s vital signs over the course of the period on appeal, the Board has determined that the above-described readings from February 2019 were abnormal findings and not the predominate level of the Veteran’s disability.  As noted earlier, the Veteran’s VA treatment records from as recent as December 2018 show the Veteran’s blood pressure to be 126/60.  

The predominance of the Veteran’s blood pressure readings from the period on appeal support the currently-assigned noncompensable (0 percent) rating for a hypertension disability.  The Veteran’s diastolic blood pressure readings have predominantly been under 100, and his systolic blood pressure readings have predominantly been under 160.  As described above, the Veteran’s diastolic blood pressure has met or surpassed 100 only on a couple of isolated occasions during the appeal period; and his systolic blood pressure has met or surpassed 160 on only a couple of isolated occasions.  These incidents appear to be outliers compared with other blood pressure readings of record.  On at least one of these occasions, the Veteran was not on his hypertension medication at the time. 

Based on the foregoing evidence, the Board finds that a higher evaluation for the Veteran’s hypertension disability is not warranted at this time.  The Veteran’s hypertension is shown to be well-controlled by medication throughout the appeal period.  The Veteran’s hypertension is not predominantly shown to have systolic pressure of 160 or more or diastolic pressure of 100 or more during the period on appeal. See 38 C.F.R. § 4.104, DC 7101.   

The Board acknowledges the Veteran’s assertions that his hypertension warrants an increased disability rating.  However, the Veteran lacks the adequate medical expertise in this case to render a medical opinion as to the nature of his symptoms or his diagnosed disabilities.  As such, the Veteran’s assertions are not competent or probative evidence to determine whether his hypertension disability has worsened enough to warrant a higher disability evaluation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 

Thus, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation for the Veteran’s hypertension disability. 38 C.F.R. § 4.104, DC 7101.  Therefore, the Veteran’s claim of entitlement to a compensable evaluation for a hypertension disability must be denied.  

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3

2. B. Coronary Artery Disease (CAD) Disability

The Veteran contends that he is entitled to an evaluation in excess of 30 percent for a coronary artery disease (CAD) disability for the period on appeal prior to September 19, 2011.  He also contends he is entitled to an evaluation in excess of 60 percent for a CAD disability for the period beginning November 1, 2011.    

As background for this issue, the Veteran filed a claim of service connection for ischemic heart disease in September 2011.  In an April 2012 rating decision, the RO granted the Veteran a temporary 100 percent evaluation for an ischemic heart disease disability based on surgery necessitating at least one month of convalescence, from September 19, 2011, and continuing until October 31, 2011.  The RO also granted the Veteran a 60 percent evaluation for an ischemic heart disease disability for the period beginning November 1, 2011.  In September 2012, the Veteran filed a NOD in response to the April 2012 rating decision.

In a February 2013 rating decision, the RO readjudicated the issue based on the Nehmer vs. U.S. Department of Veterans Affairs case, under which VA must readjudicate previously denied claims for ischemic heart disease filed by Nehmer class members (Vietnam Veterans and their survivors) and provide retroactive benefits pursuant to 38 C.F.R. § 3.816.  The RO recharacterized the issue as coronary artery disease (previously evaluated as ischemic heart disease and lesion, LAD) and granted the Veteran a 30 percent evaluation for the period between December 1, 1987 and September 19, 2011. 

In considering the evidence of record under the laws and regulations as set forth above concerning the Veteran’s CAD disability, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 30 percent for the period on appeal prior to September 19, 2011; and the preponderance of the evidence is against an evaluation in excess of 60 for the period beginning November 1, 2011.    

CAD is rated based on criteria found at 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005.  Section 4.104 was revised twice since December 1, 1987.  The first revision was effective January 12, 1998. See 62 Fed. Reg. 65207 (Dec 11, 1997).  The second revision was effective September 6, 2006. See 71 Fed. Reg. 52457 (Sept. 6, 2006).  The revision effective in 2006 did not alter the criteria applicable to this case. 

The revision effective January 12, 1998 does not specify that it was to have a retroactive effect.  Accordingly, the Board will consider the pre-January 12, 1998 criteria and the January 12, 1998 revised criteria and will apply the criteria most favorable to the Veteran.  Although if an award is warranted under the January 12, 1998 revision, the award cannot be effective prior to January 12, 1998. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

Prior to January 12, 1998, the rating criteria for arteriosclerotic heart disease (which includes coronary artery disease) set forth at 38 C.F.R. § 4.104, DC 7005, provided that a 30 percent rating is warranted if, following typical coronary occlusion or thrombosis, or with history of substantiated anginal attack, ordinary manual labor was feasible.  A 60 percent rating was assigned if, following typical history of acute coronary occlusion or thrombosis as above, or with a history of substantiated anginal attacks, more than light labor was not feasible.  A 100 percent rating was warranted for arteriosclerotic heart disease during and for six months following acute illness from coronary occlusion or thrombosis, with circulatory shock, etc.  A 100 percent rating was also assigned if after six months of such acute illness there were chronic residual findings of congestive heart failure or angina (chest pains) on moderate exertion, or more than sedentary employment precluded. 38 C.F.R. § 4.104, DC 7005 (1997). 

The rating criteria effective beginning on January 12, 1998 are based primarily on episodes of congestive heart failure, left ventricular ejection fraction values, and metabolic equivalents (METs). 38 C.F.R. § 4.104 (2018).  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 (shortness of breath), 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. Id. at Note (2).  

Under the revised criteria, a 30 percent rating is warranted for CAD if a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  A 60 percent rating is warranted for CAD resulting in more than one episode of acute congestive heart failure in the past year; or if a workload of greater than 3 METs but not greater than 5 METs results in dyspnea (shortness of breath), fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  A 100 percent rating is warranted for CAD resulting in chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005 (2014). 

Use of DC 7005 also requires consideration of 38 C.F.R. § 4.100.  This section provides that, whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or x-ray) is present and whether or not there is a need for continuous medication; even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, metabolic equivalents (METs) testing is required unless: (1) it is medically contra-indicated; or (2) when left ventricle ejection fraction is measured at 50 percent or less; or (3) when congestive heart failure is present or there has been more than one episode of congestive heart failure in the last year; or (4) when a 100 percent rating can be assigned on another basis.  If left ventricular ejection fraction (LVEF) testing is not of record, evaluation should be based on alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the Veteran’s cardiovascular disability. 

a.	1. Period Prior to January 12, 1998

An April 1988 Report of Medical Examination for Disability Evaluation reported the Veteran’s heart to be of normal size, shape, and position with no murmur.   

A May 1989 VA examination indicated that the Veteran had high blood pressure and hypertension.  He complained of being consistently tired; and he experienced trouble sleeping, shortness of breath, and chest pain.  CAD by history was assessed following his cardiac catherization during service in 1982.  

The two above examinations are the only medical evidence during the time between separation from service and January 12, 1998 that relate to the Veteran’s heart condition.  The Board notes that the evidence of record reflects that the Veteran worked in the hospitality service industry both during and after service, and this required a lot of walking and carrying heavy items.  Such sustained employment indicates that the Veteran was not precluded from undertaking more than light manual labor due to his CAD disability. 

The Board finds that the initial 30 percent disability evaluation is proper under the old DC 7005 criteria for this time period.  The evidence does not suggest that more than light manual labor was not feasible for the Veteran due to his CAD disability.  Thus, the next higher rating of 60 percent is not warranted.  Furthermore, the more severe symptoms warranting a 100 percent disability rating, such as acute illness from coronary occlusion or thrombosis in the previous six months, chronic congestive heart failure or angina, or a preclusion of more than sedentary employment, were not shown within this period. 38 C.F.R. § 4.104, DC 7005 (1997).

b.	2. Period between January 12, 1998 and September 19, 2011

In a November 2003 VA examination regarding the Veteran’s feet, it was noted that since discharge from service, the Veteran had been on medication and had good control over both his blood pressure and his cholesterol.  It was indicated that the only symptom he noted was some tired, fatigued feeling, usually late in the afternoon.  It was noted that he still worked a regular day in the hospitality service industry. 

In a November 2009 report, it was noted the Veteran had normal left ventricular size and systolic function, and the estimated left ventricular ejection fraction was 60 percent. 

In a September 19, 2011 private treatment record from Physicians Regional Medical Center, Dr. R.G. reported that the Veteran had a catheterization done secondary to a recent abnormal stress test showing some deep downsloping ST-depression level due to the exercise.  The Veteran noted that he had unexplained diaphoresis over the past few months.  However, he denied any chest pain, shortness of breath, palpitations, nausea, vomiting, diarrhea, fevers, or chills.  The Veteran demonstrated normal left ventricular systolic function with an estimated ejection fraction of 60 percent.  

Following this catheterization, the Veteran was afforded a 100 percent rating during his period of convalescence until October 31, 2011, and then a 60 percent rating thereafter. 

The Board finds that the Veteran is not entitled to a rating in excess of 30 percent for a CAD disability prior to September 19, 2011 under either set of rating criteria.  The evidence of record for this period does not show that the Veteran’s workload was greater than 3 METs but less than 5 METs, nor is there evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent that would allow for a 60 percent rating.  Furthermore, there is no evidence in the record of chronic congestive heart failure or a workload of 3 METs or less; thus, a 100 percent disability rating is not warranted for the Veteran’s CAD disability prior to September 19, 2011. 

Similar to the period prior to January 12, 1998, the evidence does not show that the Veteran experienced a history of coronary occlusion or thrombosis, or a history of substantiated angina attacks.  Additionally, the record for the period between January 12, 1998 and September 2011 does not suggest that more than light manual labor was not feasible for the Veteran due to his CAD disability.  Thus, a 60 percent evaluation or higher is not warranted, and the Board finds that the Veteran’s CAD disability does not approximate the criteria necessary for a higher disability evaluation since January 12, 1998 under the old provisions of DC 7005. 38 C.F.R. § 4.104 (1997). 

c.	3. Period Beginning November 1, 2011

As discussed earlier, the Veteran has been assigned a 60 percent disability rating for his CAD disability for the period beginning November 1, 2011. 

In the September 2011 private treatment record noted earlier, Dr. R.G. reported that the Veteran’s estimated ejection fraction following his catherization was 60 percent.   

In an October 2011 heart disease disability benefits questionnaire (DBQ), the Veteran denied experiencing dyspnea, fatigue, angina, dizziness, or syncope with any level of physical activity; and there was no evidence of cardiac hypertrophy or dilatation.  However, Dr. M.W. noted that the Veteran had slight decreased exercise tolerance.  In an October 2011 private treatment record from Millennium Physician Group, the Veteran denied chest pain or pressure, diaphoresis, dyspnea on exertion, or syncope.  In a November 2011 heart disease DBQ, the examiner reported that the Veteran’s heart disease did not impact his ability to work.  

In May 2012, the Veteran had an echocardiogram.  The Veteran’s ejection fraction was reported to be more than 60 percent; and shortness of breath, minor chest pain, and fatigue were noted. 

At a May 2012 VA examination, METs testing showed METs greater than 5 but less than 7 with evidence of dyspnea and fatigue.  The ejection fraction was noted to be 60 percent.  The Veteran complained of being very short of breath and weak.  The examiner stated that the Veteran’s interview-based METs was closer to 5 than 6 or 7 due to complaints of fatigue.  There was no evidence of cardiac hypertrophy, dilatation, or chronic heart failure. 

At a February 2015 VA examination, it was noted that the Veteran had not had congestive heart failure.  An echocardiogram showed an ejection fraction of 55-60 percent.  Under an interview-based METs test, the Veteran’s METs were greater than 7 METs but less than 10 METs. 

At a July 2016 VA examination for the Veteran’s hypertension, the examiner reported that a February 2016 echocardiogram showed the Veteran’s left ventricular ejection fraction to be 55-60 percent. 

At an August 2016 private treatment stress test at Millennium Physician Group, the examiner calculated that the Veteran’s ejection fraction was 50 percent.  The Veteran was diagnosed with coronary arteriocsclerosis and shortness of breath. 

Based on the above, the Board finds that entitlement to a 100 percent disability rating for the Veterans CAD disability is not appropriate on or after November 1, 2011.  There has been no showing of congestive heart failure, nor is there any indication that the Veteran’s workload is less than 3 METs or that his ejection fraction is 30 percent or less.  

Based on the above, the evidence for the period beginning November 1, 2011 does not show that the Veteran has a history of coronary artery disease resulting in chronic congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or a left ventricular dysfunction with an ejection fraction of less than 30 percent.  Thus, a 100 percent evaluation is not warranted in this case, and the Board finds that the Veteran’s CAD disability does not approximate the criteria necessary for a 100 percent disability evaluation since November 1, 2011 under the provisions of DC 7005. 38 C.F.R. § 4.104 (1997). 

The Board has carefully reviewed the remaining record from the appeal period in its entirety but finds no other probative evidence of record showing that the Veteran’s CAD disability is more severe for compensation purposes than demonstrated in the VA evaluations discussed above.   

d.	4. Extra-schedular Considerations

In the December 2015 Board decision, the Board declined to refer the issue of the Veteran’s CAD disability for an extraschedular rating.  The Board did not find that the evidence indicated that the Veteran had such an exceptional disability picture that the available schedular ratings for his service-connected CAD disability were inadequate. 

In the January 2017 United States Court of Appeals for Veterans Claims (Court) decision for this case, the Court stated that the Board provided an inadequate statement of reasons or bases for not remanding the matter of extraschedular consideration of the Veteran’s CAD disability as inextricably intertwined with the other matters in this case.  The Court cited Johnson v. McDonald, 762. F.3d 1362, 1365 (Fed. Cir. 2014), which stated that the Board must consider the “collective impact” of a veteran’s injuries when deciding the issue of extraschedular referral under 38 C.F.R. § 3.321(b) (2014).  The Court thus stated that VA had a responsibility to consider the combined impact of a claimant’s service-connected disabilities when determining whether referral for extraschedular consideration is appropriate; and because the Board had remanded the other issues in this case for additional medical examinations and evidence (as described earlier), it was premature to determine whether a combined impact of the Veteran’s service-connected disabilities was reasonably raised by the record. 

However, on December 8, 2017, VA issued a Final Rule that amended 38 C.F.R. § 3.321(b)(1) to abrogate the effect of the Court of Appeals for the Federal Circuit’s (Federal Circuit) holding in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) that the “plain language of [the prior version of] § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities.”  The revised version of 38 C.F.R. § 3.321(b)(1) deleted any reference to the plural “disabilities” so that extraschedular ratings could only be provided based on considering each disability individually.  VA assigned January 8, 2018, as the effective date of the rule and noted that it applied to cases pending before VA on that date. 

Subsequently, on September 12, 2018, the Court issued a panel decision in Thurlow v. Wilkie, 30 Vet. App. 231 (2018), holding that the revision to 38 C.F.R. § 3.321(b) eliminating extraschedular consideration on the basis of collective impact of multiple service-connected disabilities applied to all cases pending before VA and the Court on the effective date of the final rule.  

The case at hand was pending before VA at the time the revised rule was promulgated; thus, the revised rule applies here. 

The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1) and whether the record shows that the Veteran’s CAD is so exceptional as to warrant the assignment of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). 

In determining whether an extraschedular evaluation is warranted, the Board must first consider whether there is an exceptional or unusual disability picture, which occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran’s service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  The Board finds that the Veteran’s symptoms do not constitute an exceptional or unusual disability picture. 

The Board does not find that the evidence indicates that the Veteran has such an exceptional disability picture that the available schedular ratings for his service-connected disability are inadequate.  There is no indication that his CAD is so exceptional or unusual that the schedular criteria do not adequately compensate him for his symptomatology.  In addition, there is no evidence of marked interference with employment or frequent periods of hospitalization.  

For example, as noted earlier, at the February 2015 VA examination for the Veteran’s heart condition, the Veteran’s METs levels were greater than 7 METs but less than 10 METs.  This is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging (6mph).  The Veteran’s ejection fraction was 55-60 percent.  The February 2015 VA examiner also found that the Veteran’s heart condition did not impact his ability to work. 

Similarly, at the May 2012 VA examination, the Veteran’s METs levels were greater than 5 METs but less than 7 METs with evidence of dyspnea and fatigue, and the Veteran’s ejection fraction was noted to be 60 percent.  There was no evidence of cardiac hypertrophy, dilatation, or chronic heart failure.  The examiner found that the Veteran’s heart disease did not impact his ability to work. 

The symptoms exhibited by the Veteran in the evidence of record, as described above and throughout this section, are contemplated by the relevant diagnostic code.  Accordingly, the Veteran’s symptoms do not constitute an exceptional or unusual disability picture. 

The schedule of rating criteria for CAD adequately considers and compensates for Veteran’s symptoms, as identified above.  As such, the schedular criteria are adequate to rate the Veteran’s service-connected CAD disability.  Thus, the Board concludes that referral for an extraschedular rating need not be considered further. 

In summary, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 30 percent for the period prior to September 19, 2011; and the preponderance of the evidence is also against an evaluation in excess of 60 for the period beginning November 1, 2011.  

The Veteran’s current evaluations for his CAD disability appropriately reflect the Veteran’s CAD disability under the provisions of 38 C.F.R. § 4.104.  Therefore, the Veteran’s claim of entitlement to an evaluation in excess of 30 percent for a coronary artery disease (CAD) disability for the period prior to September 19, 2011 must be denied; and his claim of entitlement to an evaluation in excess of 60 percent for a CAD disability for the period beginning November 1, 2011 must be denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.104, DC 7005.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

III.	Total Disability Rating Based on Individual Unemployability (TDIU)

The Veteran contends that he is entitled to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to January 1, 2014.  

The 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 education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16.  

A claim for a TDIU is a potential part of an initial rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  A TDIU may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more 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. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). 

Furthermore, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b).  Thus, if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extra-schedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993).  

With regard to whether the Veteran is entitled to a TDIU pursuant to 38 C.F.R. § 4.16(b), the Board has no authority to award a TDIU under § 4.16(b) in the first instance.  Rather, the rating board must submit to the Director of Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). Bowling v. Principi, 15 Vet. App. 1, 10 (2001).  If the Director denies the extraschedular TDIU, the Board has jurisdiction to grant or deny the appeal, or remand for additional development and the Director’s decision is the same as the RO’s as far as the Board’s jurisdiction and standard of review. Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (“In short, the Director’s decision is no different than an RO’s decision in terms of its effect on the Board’s statutory jurisdiction and the Board’s standard of review”).

Neither non-service-connected disabilities nor advancing age may be considered in a TDIU determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Thus, the Board may not consider the effects of the Veteran’s non-service-connected disabilities on his ability to function.  For example, as discussed in the earlier sections, the Veteran is not service-connected for a back disability or an abdominal aortic aneurysm disability.  Thus, the Board may not consider the effects of the Veteran’s non-service-connected back or abdominal aortic aneurysm disabilities on his ability to function for purposes of a TDIU. 

As background for this issue, the Veteran filed for a TDIU in October 2009.  The RO granted the Veteran a TDIU in an October 2019 rating decision with an effective date of January 1, 2014.  The RO chose January 1, 2014 as the effective date because that is the date on which the Veteran both met the schedular requirements for a TDIU and he was found to be unable to maintain substantially gainful employment due to his service-connected disabilities.   

Because the grant of a TDIU was based in part on the Veteran’s service-connected disabilities of coronary artery disease (CAD) and hypertension, which are currently on appeal, the issues before the Board include entitlement to a TDIU for the period on appeal prior to January 1, 2014. 

Service connection has been established for the Veteran’s disabilities of CAD, hypertension, diabetes mellitus (type II), peripheral neuropathy of the sciatic nerve of the right and left lower extremities, residual deformity of the right middle finger with arthritis, degenerative changes in both feet, and left ear hearing loss. 

For the period prior to January 1, 2014, the Veteran has a disability rating of 60 percent for his CAD disability, a disability rating of 20 percent for his diabetes mellitus (type II) disability, a disability rating of 20 percent for his disability of peripheral neuropathy of the sciatic nerve of the right lower extremity, and a disability rating of 20 percent for his disability of peripheral neuropathy of the sciatic nerve of the left lower extremity.  He also has noncompensable (0 percent) evaluations for his disabilities of hypertension, residual deformity of the right middle finger with arthritis, degenerative changes in both feet, and left ear hearing loss. 

The Veteran had a 60 percent disability rating for his service-connected CAD disability beginning on November 1, 2011.  As such, the schedular requirement for a TDIU was met starting on November 1, 2011.  

Even so, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment during the period prior to January 1, 2014.  As such, the Veteran is not entitled to a TDIU prior to January 1, 2014, and referral for extraschedular consideration is not warranted.  

In the Veteran’s October 2009 application for a TDIU (VA Form 21-8940), the Veteran contended that his service-connected disabilities affected his full-time employment in May 2008.  He reported that he last worked full time on April 28, 2008, and he became too disabled to work on May 1, 2008.  Prior to May 2008, he had worked in various management positions in the food and beverage industry.  He also reported that, in 2006, he earned $102,000.00.  The Veteran stated that he had completed his second year of college, and he had not had any education or training since he became too disabled to work.  He also reported that, as of October 2009, he had not tried to obtain employment since he became too disabled to work.  

In an updated VA Form 21-8940 from July 2016, the Veteran reported that he had worked as a grocery store cashier since January 2011.  The highest gross earnings he had per month in that position was $1,228.33, and the total income he had earned in the past 12 months was $7,886.00.  The Veteran stated that he left his last job because of his disability.  He noted that he had an Associates Degree in Business Management from University of Texas at El Paso.   

In a related VA Form 21-4192 Request for Employment Information in Connection with Claim from August 2018, the Veteran’s grocery store employer reported that the Veteran had worked for them as a part-time cashier from August 2010 to May 2017.  He worked up to 35 hours a week for $12.65 per hour. 

In a July 2016 Affidavit, the Veteran reported that he worked as a grocery store cashier for 20 to 25 hours a week from January 2011 to roughly the middle of 2014.  After that, he worked one six-hour shift per week. 

In the Affidavit, the Veteran also stated that, for the entirety of his career, including active service, he worked in hospitality management.  This work required him to be on his feet and always in motion, ensuring that the staff are doing their jobs and that patrons are having an enjoyable experience.  Prior to 2008, he worked 70 to 90 hours a week, after which he began to feel body fatigue and pain in both feet, which got to the point where he felt he could not work anymore. 

In his position at the grocery store, the work was less taxing than his previous jobs, but it still required him to be on his feet for an entire shift and in perpetual motion because it was a very high-traffic store.  He eventually felt he could not work for 20 to 25 hour per week because he was constantly feeling fatigued during the day, and his feet were bothering him such that he could not get through an entire shift without extreme discomfort.  After he switched to 6 hours a week in 2014, he stated that his fatigue had increased; and he had more pain, tingling, and numbness in both feet. 

In the July 2016 Affidavit, the Veteran further stated that he was unable to do some basic activities that he used to enjoy without feeling fatigued.  For example, he used to regularly exercise, walk, ride a bicycle, and go swimming; but he could no longer do these things.  He reported suffering from fatigue, dizziness, nausea, and memory issues, as well as shortness of breath and problems with hearing. 

In January 2017, the Veteran’s representative submitted an Employability Evaluation.  In this Evaluation, Ms. R.B., a rehabilitation counselor, opined that, due to the Veteran’s combination of service-connected disabilities, it was at least as likely as not that by 2008 the Veteran would no longer be able to secure and follow a substantially gainful occupation.  Ms. R. B. noted that the Veteran had difficulty sitting, standing, or walking for prolonged periods due to fatigue, pain, cramping, and weakness in his legs and feet.  Fatigue from his CAD and diabetes also required breaks and daily naps up to two hours at a time.  The Veteran also reportedly suffered from dizziness that required him to stop what he was doing until he regained equilibrium.

Although Ms. R.B. stated that the Veteran had difficulty sitting, standing, or walking for prolonged periods, this would not preclude him from performing work that primarily involved desk work or sitting or otherwise required minimal time on his feet and frequent breaks.  Additionally, Ms. R.B. stated that the Veteran marginal income from 2010 through 2015.  As discussed later in this section, this is not entirely true.

Looking at the medical evidence of record from the period on appeal prior to January 1, 2014, in a November 2011 heart disease disability benefits questionnaire (DBQ), the Veteran’s private physician, Dr. R.G. determined that the Veteran’s heart disease does not impact his ability to work.  Similarly, at the Veteran’s May 2012 VA examination for his heart condition, the VA examiner found that the Veteran’s heart disease does not impact his ability to work.  The VA examiner noted that, at the time, the Veteran was working at a grocery store.    

In a December 2009 VA Medical Opinion, the VA examiner found that it is not likely that the Veteran is unable to obtain and maintain gainful employment in either the physical and sedentary sectors due to his hypertension disability.  The examiner noted that the Veteran’s hypertension is well controlled.  

At an August 2010 VA examination for the Veteran’s hearing loss, the examiner stated that there were no effects on usual daily activities as a result of the Veteran’s hearing loss.  At a November 2010 VA examination for the Veterans’ foot condition, the examiner stated that there were no effects on usual daily activities as a result of the Veteran’s foot condition.  The VA examiner also found that there were no effects on usual daily activities as a result of the Veteran’s finger disability. 

In the November 2017 Board decision, the Board remanded the issue of entitlement to TDIU in order to obtain further information concerning the Veteran’s employment and salary between 2010 and 2014.  In a July 2018 letter, the RO notified the Veteran that they wished to request that his grocery store employer provide a complete breakdown of his salary and average working hours between 2010 and 2014.  The Veteran’s grocery store employer submitted the aforementioned August 2018 VA Form 21-4192.  The record also includes the Veteran’s payment records from his grocery store employer from 2015 through 2017.  

The Veteran also submitted a Social Security Earning Statement concerning the Veteran’s earnings up through 2015.  Under 38 C.F.R. § 4.16, marginal employment shall not be considered substantially gainful employment.  Marginal employment shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person.  The Veteran’s Social Security Statement indicated that he had income exceeding the poverty threshold through 2013.     

Despite the opportunity to do so, neither the Veteran nor his employer have submitted any further payment records or other information concerning the Veteran’s employment or salary from the period between 2010 and 2014. 

Based on the evidence described above, the Board finds that, although the Veteran’s service-connected disabilities may have negatively impacted his employability during the period on appeal prior to January 1, 2014, they did not preclude his participation in a substantially gainful occupation.  The evidence of record, including the January 2017 Employability Evaluation by Ms. R.B., predominantly reflects that the Veteran worked as a grocery store cashier up to 35 hours a week until 2014, and he had trouble maintaining substantial employment in that position because it required him to engage in a substantial amount of physical activity, including prolonged standing and walking.   

Although the Veteran was not able to regularly perform tasks that involved prolonged walking, prolonged sitting, or other laborious activity such as heavy lifting, the Veteran was not precluded from performing work that primarily involved desk work or sitting or otherwise required minimal time on his feet and frequent breaks.  His educational and work background is not so limited as to have precluded occupations of this nature.  As noted earlier, he has an Associates Degree in Business Management.  

Thus, based on the above, the Board finds that the preponderance of the evidence is against the finding that the Veteran was unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities during the period on appeal prior to January 1, 2014.  Therefore, the Board finds that entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities is not warranted for the period on appeal prior to January 1, 2014. See 38 C.F.R. §§ 3.340, 3.341, 4.16.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

 

 

JAMES G. REINHART

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Department of Veterans Affairs

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.