Citation Nr: 20036729 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 14-38 156A DATE: May 28, 2020 ORDER Entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease for the period prior to March 13, 2018 is denied. Entitlement to a 100 percent disability rating for ischemic heart disease for the period from March 13, 2018 is granted. Entitlement to special monthly compensation (SMC) based on aid and attendance is granted. REMANDED Entitlement to service connection for depression is remanded. FINDINGS OF FACT 1. For the period prior to March 13, 2018, the Veteran’s ischemic heart disease was manifested by a workload of 7 to 10 METs resulting in angina. 2. For the period from March 13, 2018, affording the Veteran reasonable doubt, his ischemic heart disease is manifested by a workload of 3 METs or less resulting in fatigue. 3. Affording the Veteran reasonable doubt, he is in need of the regular aid and attendance of another person as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. For the period prior to March 13, 2018, the criteria for an initial disability rating in excess of 30 percent for ischemic heart disease have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.104, Diagnostic Code 7005 (2019). 2. For the period from March 13, 2018, the criteria for a 100 percent disability rating for ischemic heart disease have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.104, Diagnostic Code 7005 (2019). 3. The criteria for SMC as due to the need for regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114(l), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1960 to December 1964 and from July 1965 to March 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2011 (SMC) and August 2013 (depression and ischemic heart disease) rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a January 2019 decision, the Board, in pertinent part, denied the Veteran’s claims of entitlement to service connection for depression, entitlement to SMC, and entitlement to an increased disability rating for ischemic heart disease. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the January 2019 decision as to the issues of entitlement to service connection for depression, entitlement to SMC, and entitlement to an increased disability rating for ischemic heart disease. The Court granted the JMR in a December 2019 order. As such, the matters are back before the Board. 1. Entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease for the period prior to March 13, 2018 is denied. 2. Entitlement to a 100 percent disability rating for ischemic heart disease for the period from March 13, 2018 is granted. The Veteran is seeking an initial disability rating in excess of 30 percent for his service-connected ischemic heart disease. Specifically, the Veteran contends that his ischemic heart disease is more severe than reflected by his currently assigned disability rating. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s ischemic heart disease is rated as 30 percent disabling under Diagnostic Code 7005. 38 C.F.R. § 4.104. Pursuant to Diagnostic Code 7005, a 30 percent rating is assigned when 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 when there is more than one episode of congestive heart failure in the past year; or a workload of 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted when there is chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. One MET is defined as 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 evaluation, and a laboratory determination 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). The Veteran was provided with a VA examination for his ischemic heart disease in July 2013. He reported experiencing chest pains about once a month. The VA examiner confirmed a diagnosis of ischemic heart disease and noted that the Veteran’s treatment plan included continuous medication. It was noted that the Veteran did not suffer from congestive heart failure. EKG and echocardiogram revealed evidence of cardiac hypertrophy and a left ventricular ejection fraction of 67%. On an interview-based METs test, the Veteran reported experiencing angina at the 7 to 10 METs level, which was consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The Veteran clarified he could run up a few flights of stairs without symptoms, except he sometimes experienced chest tightness. The examiner noted he was unsure whether this represented angina, as the Veteran had not reported this symptom to his primary care provider and had not established a diagnosis of unstable angina. The Veteran was afforded another VA examination for his heart condition in March 2018. The VA examiner conducted an interview-based METs test which revealed that the Veteran experienced fatigue at the 1 to 3 METs level, consistent with activities such as eating, dressing, taking a shower, and slow walking for 1 to 2 blocks. The examiner explained that although the Veteran’s multiple medical conditions, including heart conditions, affected his METs level, it was not possible to accurately determine the percent of METs limitation attributable to each condition. The examiner explained that the Veteran’s METs level was likely multifactorial, due to age, deconditioning, and other medical comorbidities and that the Veteran’s ejection fraction, which was greater than 55%, was more accurate to determine the severity of his ischemic heart disease. For the period prior to March 13, 2018, the Board finds that the preponderance of the evidence is against finding that the Veteran’s ischemic heart disease warranted a disability rating in excess of 30 percent. Specifically, during this period, the Veteran’s disability did not manifest in more than one episode of acute congestive heart failure in the past year, a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. In this regard, the July 2013 VA examination indicated that Veteran did not suffer from congestive heart failure, had a left ventricular ejection fraction of 67%, and experienced angina at the 7-10 METs level based on an interview based METs test. Further, treatment records prior to March 13, 2018 do not show congestive heart failure in the past year, a workload of less than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 50 percent. Therefore, based on the objective medical evidence of record, the Veteran’s symptomatology for the period prior to March 13, 2018 does not more nearly approximate or equate to a disability rating in excess of 30 percent. For the period from March 13, 2018, the Board finds that the preponderance of the evidence supports finding that the Veteran’s ischemic heart disease warrants a 100 percent disability rating. Specifically, during this period, the Veteran’s ischemic heart disease manifests in a workload of 3 METs or less resulting in fatigue. In this regard, the March 2018 VA examiner indicated that, based on an interview based METs test, the Veteran experienced fatigue at the 1 to 3 METs level. While the examiner explained that the Veteran’s METs was likely multifactorial with multiple conditions affecting his METs level, he was unable to accurately determine the percent of METs limitation attributable to each condition. Where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In light of Mittleider, the Board considers the Veteran’s limited METs levels to be attributable to his service-connected ischemic heart disease. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that a 100 percent disability rating for the Veteran’s ischemic heart disease for the period from March 13, 2018 is warranted. 3. Entitlement to special monthly compensation (SMC) based on aid and attendance is granted. The Veteran contends that he is entitled to SMC based on the need for aid and attendance, as he claims that he needs assistance with activities of daily living. SMC is payable to a veteran for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result of service-connected disability that he or she is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Factors considered to determine whether regular aid and attendance is needed include: inability to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need to adjust special prosthetic or orthopedic appliances which by reason of the particular disability requires aid (this does not include adjustment of appliances that persons without any such disability would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision is permissible. Particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). It is logical to infer, however, a threshold requirement that “at least one of the enumerated factors be present.” Turco, 9 Vet. App. at 224. “Bedridden” will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352(a). To establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s), the evidence must show that a veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i). A veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound but not for both simultaneously. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. § 1114(l), (s). Following a review of the pertinent evidence of record, the Board finds that entitlement to SMC based on aid and attendance is warranted. In March 2018, the Veteran was provided VA examinations for aid and attendance or housebound status and ischemic heart disease. The VA examiner noted that the Veteran was currently hospitalized for acute rehabilitation and could not travel beyond his current domicile. The Veteran had trouble with his left upper and lower extremities because of a stroke in 2001. He would easily lose his balance and fall over. He suffered from dizziness at least once a day and had moderate memory loss. The Veteran had been sent to acute rehabilitation following hospitalization for urinary tract infections and an inability to care for himself. The examiner indicated that the Veteran was unable to self-feed, dress and undress, bathe, groom, or use the toilet. He required the use of another person to walk and used a cane to ambulate. The Veteran had pain, stiffness and limited range of motion of the cervical and thoracolumbar spine. His left lower extremities were functionally limited by limitation of joint motion, muscle weakness, and lack of coordination. His right lower extremities were functionally limited by limitation of joint motion, muscle weakness, paralysis, and lack of coordination. The Veteran was found to be capable of managing his financial affairs. The examiner concluded that the Veteran suffered from multiple medical conditions that contributed to his current level of disabilities in activities of daily life, including “ischemic heart disease, history of stroke with residual left hemipareses, recurrent urinary tract infections, frequent falls, etc.” The examiner further noted that the Veteran was only service connected for ischemic heart disease, which did not affect the Veteran’s ability to work. As the March 2018 VA examiner did not separate the limitations caused by the Veteran’s multiple conditions, the Board is unable to distinguish the effects of service-connected disabilities from non-service-connected disabilities. Therefore, the Board resolves all reasonable doubt in favor of the Veteran and attributes all limitations resulting in his inability to care for himself to service-connected disabilities. See Mittleider, 11 Vet. App at 182. Based on the foregoing, and resolving any reasonable doubt in the Veteran’s favor, the Board finds that entitlement to SMC based on the need for regular aid and attendance is warranted. As SMC based on aid and attendance is a greater benefit than SMC based on housebound status, the Board need not address housebound status. 38 U.S.C. §§ 1114 (l), (s). REASONS FOR REMAND 1. Entitlement to service connection for depression is remanded. The Veteran is seeking to establish service connection for depression. Specifically, the Veteran contends his depression is related to his active duty service. The Board finds that additional development is necessary before a decision may be rendered regarding the issue on appeal. The Board notes that the Veteran is service connected for posttraumatic stress disorder (PTSD). An April 2018 VA examination indicated that the Veteran’s symptoms related to depressed mood and depression were part of his PTSD diagnosis. However, subsequent to the VA Examination, a June 2018 VA treatment record indicated that the Veteran had a new diagnosis of depression, added since his previous assessment. As the June 2018 VA treatment record suggests that the Veteran may have a diagnosis of depression separate from his service-connected PTSD, remand is warranted for a VA examination to determine whether the Veteran’s symptoms of depression are separate from his already service connected PTSD and if so, whether his depression is etiologically related to service. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diagnosed psychiatric disorder other than PTSD, specifically depression. The electronic claims folder, including a copy of this remand, should be made available to the examiner, and the examiner must review the entire claims file in conjunction with the examination. The examiner should respond to the following: (a) Does the Veteran meet the criteria for a diagnosis of depression, separate from his service-connected PTSD? The examiner should address the June 2018 VA treatment record noting a diagnosis of depression and explain why or why not this diagnosis is accurate. (b) If the Veteran meets the criteria for a diagnosis of depression, determine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s depression is etiologically related to active duty service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Silverblatt, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.