Citation Nr: 20028027 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 17-54 969 DATE: April 21, 2020 ORDER Additional retroactive accrued compensation due to the earlier effective date granted by the November 2015 Board decision and December 2015 regional office rating decision is denied. A rating in excess of 10 percent, for the period prior to May 24, 2008, for the Veteran’s Ischemic Heart Disease (IHD) is denied. FINDINGS OF FACT 1. Under the Combined Rating Table set forth in 38 C.F.R. § 4.25 a comparison of the Veteran’s total combined ratings before and after the grant of an earlier effective date for IHD indicates that additional retroactive compensation is not warranted. 2. During the period prior to May 24, 2008, the Veteran’s IHD was characterized by no more than a METs level of 6 to 7 and the ability to garden, climb stairs, carry 30 to 50 pounds, walk, and bicycle, all without dyspnea, fatigue, angina, or dizziness. CONCLUSIONS OF LAW 1. The appellant is not entitled to additional retroactive compensation as a result of the grant of an earlier effective date for IHD. 38 U.S.C. § 1155; 38 C.F.R. § 4.25 (2019). 2. The criteria to establish a rating in excess of 10 percent, for the period prior to May 24, 2008, for IHD have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.104, Diagnostic Code 7005 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1967 to September 1969. The Veteran died in mid-2015. The Veteran’s widow (hereinafter “appellant”) was properly substituted in October 2015. In a November 2015 Board decision, the appellant was granted an earlier effective date of September 15, 2004 for the Veteran’s ischemic heart disease (IHD). The previous effective date for this disability was May 24, 2008. The November 2015 Board decision did not determine the appropriate rating for this added time period. However, a December 2015 rating decision enacted the earlier effective date as instructed by the Board and separately determined a 10 percent rating was warranted. I. Entitlement to additional compensation as a result of the grant of an earlier effective date for IHD In her August 2016 notice of disagreement, the appellant claimed the Veteran was entitled to a rating in excess of 10 percent, beginning September 15, 2004. She claims that she is entitled to three years and eight months of compensation for the earlier effective date granted by the November 2015 Board decision. In the appellant’s September 2017 substantive appeal, she indicates that she was only paid for one month of “missed benefits.” VA uses the Combined Ratings Table set forth in 38 C.F.R. § 4.25 to determine the combined rating for a veteran’s service-connected disabilities. The Table does not use a mathematical calculation to determine the combined rating. A combined rating results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. 38 C.F.R. § 4.25. To calculate the combined evaluation for the Veteran’s service-connected disabilities, the disabilities are first arranged in the exact order of their severity, beginning with the greatest disability. Next, using the Combined Ratings Table, the degree of the first disability is read in the left column of the table and the degree of the second disability is read in the top row of the table, whichever is appropriate. The figure that appears in the space where the column and row intersect represents the combined value of the two. This process is then completed for each disability, in the order of severity until no other disability remains. This total combined value is then converted to the nearest degree divisible by 10. Combined values ending in 5 are adjusted upwards. Id. The appellant asserts that she is entitled to 44 months of additional benefit payments at a 10 percent rate because the November 2015 Board decision granted an effective date of 44 months from the previously assigned effective date. However, this assertion is based on a misunderstanding of the way in which the VA calculates the total combined rating when a Veteran has multiple disabilities. As noted above, the various ratings for individual disabilities are not simply added together to compute the total disability rating. Instead, the VA uses the Combined Ratings Table set forth in 38 C.F.R. § 4.25. Prior to the November 2015 grant of an earlier effective date, the Veteran was receiving disability payments beginning October 21, 2004 with a total combined rating of 40 percent. For the period from October 21, 2004 to May 24, 2008, the individual disabilities included posttraumatic stress disorder (PTSD) rated as 30 percent disabling, tinnitus rated as 10 percent disabling, and bilateral hearing loss rating as 0 percent disabling. Calculating the combined disability rating: the Veteran’s 30 percent rating for PTSD is combined with the Veteran’s 10 percent rating for tinnitus, resulting in a 37 percent rating. This 37 percent rating is then combined with the 0 percent rating for bilateral hearing loss. The result is a total combined rating of 37 percent. As noted in the regulations, the total combined value is then converted to the nearest degree divisible by 10. Combined values ending in 5 or higher are adjusted upwards. In this instance, the Veteran’s rating ends in “7” which is adjusted upward to form a 40 percent total combined rating for that period. After the November 2015 assignment of an earlier effective date for IHD, the additional period of service connection is from September 15, 2004 to October 21, 2004. During this period, the Veteran’s only rating is the 10 percent rating for his IHD. Because there are not multiple disabilities for this period, the Veteran’s total combined rating for the period from September 15, 2004 to October 21, 2004 is 10 percent. This is the additional payment already received by the appellant. After the November 2015 grant of an earlier effective date for IHD, the calculations for the period from October 21, 2004 to May 24, 2008 would be completed as follows. During this period, the Veteran’s individual disabilities included, PTSD rated as 30 percent disability, tinnitus rated as 10 percent disabling, IHD rated as 10 percent disabling, and bilateral hearing loss rated as 0 percent disabling. As before, to calculate the total disability rating using the Combined Ratings Table for this period the procedure is as follows. Calculating the most severely rated disability and going to the least, the Veteran’s 30 percent rating for PTSD is combined with the Veteran’s 10 percent rating for tinnitus, resulting in a 37 percent rating. This 37 percent rating is then combined with the 10 percent rating for IHD, resulting in a 43 total combined rating. The 43 percent rating is then combined with the 0 percent rating for bilateral hearing loss. The result is a total combined rating of 43 percent. As noted in the regulations, the total combined value is then converted to the nearest degree divisible by 10. Combined values ending in 5 or higher are adjusted upwards. In this instance, the Veteran’s rating ends in “3” which is adjusted to the nearest degree divisible by 10. In this case, the result is a 40 percent rating for the period. The Board is bound by applicable statutes, VA regulations, and precedent opinions of the General Counsel of the VA and is without authority to revise them. 38 C.F.R. § 19.5. Therefore, the Board does not have any authority to calculate the Veteran’s overall disability rating utilizing any method other than the Combined Ratings Table and 38 C.F.R. § 4.25. The result of these calculations is that the grant of an additional 10 percent rating for the Veteran’s IHD made no difference to the Veteran’s total combined disability rating for all but one month. Therefore, the appellant is not entitled to additional compensation (beyond what has already been received) as a result of the Board’s November 2015 grant of an earlier effective date for IHD. II. Entitlement to a rating in excess of 10 percent, for the period prior to May 24, 2008, for the Veteran’s IHD The Veteran’s heart disability was rated under 38 C.F.R. § 4.104, DC 7005. For rating diseases of the heart, one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for rating, 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. 38 C.F.R. § 4.104, Note 2. Diagnostic Code 7005 provides ratings for IHD and requires a documented diagnosis. IHD resulting in workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required, is rated 10 percent disabling. Arteriosclerotic heart disease resulting in workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, is rated 30 percent disabling. Arteriosclerotic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is rated 60 percent disabling. Arteriosclerotic heart disease resulting in chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent, is rated 100 percent disabling. 38 C.F.R. § 4.104. A Note to Diagnostic Code 7005 provides that, if nonservice-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, the adjudicator is to request a medical opinion as to which condition is causing the current signs and symptoms. 38 C.F.R. § 4.104. In May 2006, the Veteran was afforded a VA examination. The Veteran noted that 25 years previously, he had an episode of chest tightness, shortness of breath, loss of control of bowels and difficulty walking for six months. The Veteran stated that he was diagnosed with anxiety attacks. The examiner noted a history of good exercise tolerance. The examiner also noted current symptoms including chest pressure, jaw, shoulder, throat, and arm pain. The examiner reported no shortness of breath, a METs level of 6 to 7, and the ability to garden, climb stairs, carry 30 to 50 pounds, walk, bicycle without shortness of breath or chest pain, no palpitations, no dizziness, and no syncope. The examiner also noted no history of heart attacks, swelling, angioplasty, or stent placements. The examiner concluded that the Veteran did not have significant objective findings to support a cardiac condition. An October 2006 treatment note indicates that the Veteran was experiencing unexplained chest discomfort, but the clinician noted the Veteran’s heart sounded normal with no murmurs, no extremity edema, and PMI normal to palpation. During the period prior to May 24, 2008, the Veteran’s IHD was characterized by no more than a METs level of 6 to 7 and the ability to garden, climb stairs, carry 30 to 50 pounds, walk, and bicycle, all without dyspnea, fatigue, angina, or dizziness. Given these facts, the Board finds that a 10 percent rating is warranted for the period prior to May 24, 2008 for the Veteran’s IHD. The Veteran was not entitled to a 30 percent rating for this period because there was no evidence of more than one episode of acute congestive heart failure in the past year, or, a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, or dizziness. Therefore, an increased rating is not warranted, and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua Wozniak 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.