Citation Nr: 20041963 Decision Date: 06/19/20 Archive Date: 06/19/20 DOCKET NO. 13-18 314 DATE: June 19, 2020 ORDER Entitlement to a rating in excess of 60 percent for ischemic heart disease (IHD) prior to April 23, 2019, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected IHD, prior to April 23, 2019 is granted. Entitlement to special monthly compensation (SMC) at the housebound rate is granted, prior to April 23, 2019 is granted. REFERRED The issue of entitlement to compensation under 38 U.S.C. § 1151, due to treatment from March 2020 to May 2020 at the Bronx VA Medical Center (VAMC), was raised in a May 2020 statement by the Veteran’s son/daughter, M.W.; and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. Prior to April 23, 2019, metabolic equivalent (MET) testing shows the Veteran develops fatigue, angina, dizziness and diaphoresis (excessive sweating) at a workload of 3 to 5 METs. MET testing shows the Veteran did not develop these symptoms at a workload of 3 METs or less, and the evidence did not show chronic congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent. 2. Prior to April 23, 2019, the Veteran’s service-connected IHD rendered him unable to maintain substantially gainful employment in his prior occupation as a carpenter. 3. Prior to April 23, 2019, separate from his TDIU based solely on service-connected IHD, the Veteran had additional service-connected disabilities independently ratable at 60 percent or more disabling. CONCLUSIONS OF LAW 1. Prior to April 23, 2019, the criteria for a rating in excess of 60 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 2. Prior to April 23, 2019, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 3. Prior to April 23, 2019, the criteria for SMC at the housebound rate have been met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1969 to January 1971. This appeal arises from an October 2011 rating decision, denying the Veteran’s increased rating claim in excess of 10 percent for the Veteran’s service-connected heart disease, then characterized as coronary artery disease (CAD). A May 2013 rating decision recharacterized the CAD as IHD and increased the rating to 30 percent from October 25, 2011. An October 2014 rating decision continued to deny a rating in excess of 30 percent for IHD. The Board’s June 2016 decision partially granted an increased rating of 60 percent, but no higher, for CAD throughout the appeal period. The AOJ’s July 2016 rating decision effectuated this award, assigning a 60 percent rating for IHD from May 31, 2011. However, in July 2016, August 2017, and May 2018, the Board remanded the increased rating claim beyond 60 percent for IHD to the AOJ for further development and consideration. In February 2020, the AOJ increased the Veteran’s IHD to 100 percent, effective from April 23, 2019; and accordingly, granted special monthly compensation based on housebound status under 38 U.S.C. §§ 1114 (s), effective from April 23, 2019. Given that there are no higher ratings available, and a concurrent SMC based on housebound status was awarded, the Board finds that the portion of the appeal for an increased rating for IHD has been fully granted and is no longer in appellate status. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). This also moots the need for obtaining any further VA treatment records dated after April 2019. However, the Veteran’s claim for an increased rating in excess of 60 percent rating prior to April 23, 2019 remains pending, and is addressed below. The Veteran testified at a Board hearing at the RO (Travel Board) in April 2016, before a Veterans Law Judge (VLJ). A transcript is of record. The Veteran was notified in January 2018 that the VLJ who conducted the hearing was no longer employed with the Board. The Veteran was provided the opportunity to testify at another hearing, but he responded in February 2018 that he did not wish to participate in another Board hearing. So, the Board proceeds to address the claim on appeal.  1. Entitlement to a rating in excess of 60 percent for IHD prior to April 23, 2019. The Veteran contends he is entitled to a higher rating due to the severity of his heart disease symptoms, particularly daily chest pain, fatigue and dizziness. See April 2016 Board hearing, at 4-6. The Veteran’s IHD has been assigned a 60 percent rating, from May 31, 2011 until April 23, 2019, under 38 C.F.R. § 4.104 (cardiovascular system), Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). As a preliminary matter, the Board remanded this case in May 2018 for the AOJ to (1) obtain outstanding VA treatment records, and the AOJ obtained those records available at the time of the February 2020 Supplemental Statement of the Case (SSOC); (2) obtain outstanding private treatment records, including from the Bronx-Lebanon Hospital Center, but that facility provided a negative response; (3) arrange a VA examination to evaluate the severity of his IHD, which was obtained on April 23, 2019; and (4) refer the issue of entitlement to an extraschedular evaluation under 38C.F.R.§3.321(b) to the Director of Compensation Service, but on remand, the Director of Compensation Service denied the claim for an extra-schedular evaluation for IHD, in September 2019 and November 2019 memos. The Board is therefore satisfied there was compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of the principles of Stegall v. West, 11 Vet. App. 268, 271 (1998), when the examiner made the ultimate determination required by remand). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Under DC 7005, a 60 percent rating is warranted for 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. A 100 percent rating is warranted for 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. One MET 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. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, 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. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase “30 to 50 percent” means 30 percent through 50 percent. Id. at 380. For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382. Considering all relevant evidence of record, there was no chronic congestive heart failure. In fact, the August 2017 VA examiner found no congestive heart failure. Further, the Board finds the Veteran’s METs level during this period was between 3-5 METs, but at no time less than 3 METs, as required for the maximum 100 percent rating. An October 2011 VA treatment record found a METs workload of 5.9 percent, with symptoms of fatigue and dizziness. Also, the August 2016 VA examination found a METs workload of no less than between 3-5 METs when showing symptoms of angina, dizziness, fatigue and diaphoresis (excessive sweating). The Board does not accord probative value to the August 2017 VA examiner’s assessment of METs of 6-7, as this was done without any rationale or METs testing to support such finding. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Also, during this period, the Veteran’s IHD demonstrated left ventricular dysfunction with an ejection fraction at approximately 45 percent to 50 percent, so not approaching an ejection fraction less than 30 percent as required for the maximum 100 percent rating. An October 2011 VA treatment record found a left ventricular ejection fracture of 51 percent. Also, the August 2016 VA examiner referenced an echocardiogram in November 2014 that showed left ventricular ejection fraction (LVEF) of 45 percent to 50 percent. The August 2017 VA examiner referred back to the 2011 results of an LVEF of 51 percent, but without providing any independent updated finding of the LVEF. Accordingly, the Board concludes that the Veteran has no chronic congestive heart failure, the Veteran’s IHD symptoms do not appear at the requisite METs level and the evidence shows left ventricular dysfunction with an ejection fraction ranging from 30 to 50 percent throughout the appeal period. Rather, these findings correspond to the criteria for a 60 percent rating under DC 7005. There is no other evidence, including on review of VA and private treatment records, that supports the claim for a rating higher than 60 percent for IHD. For instance, a June 2018 private echocardiogram found an LVEF of 55 percent. The Board observes that the Veteran has complained of chest pain, dizziness, syncope and fatigue. While his descriptions of his symptomatology are both competent and credible, they are outweighed by the medical evidence noted. The medical findings are more probative since made by a clinician with expertise in assessing the severity of cardiovascular disabilities, based upon physical evaluation and diagnostic testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159 (a)(2). Therefore, since the Veteran’s IHD has never been more than 60 percent disabling during this period, the Board cannot further stage this rating. A higher 100 percent rating is not warranted unless there is 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. Here, the IHD symptoms show no chronic congestive heart failure, and the IHD symptoms appear at greater than 3 METs and show left ventricular dysfunction with an ejection fraction that is 30 percent or greater. Thus, the Board concludes that the Veteran’s IHD did not meet the criteria corresponding to a higher 100 percent rating. The issue of consideration of an extraschedular rating was raised by the representative’s March 2018 informal hearing presentation, such that Veteran has experienced significant heart-related complications. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. The Board’s May 2018 remand indicated that the Veteran’s multiple hospitalizations for heart disability symptoms warranted referral for an extraschedular evaluation to the Director of Compensation Service. On remand, the Director of Compensation Service denied the claim for an extra-schedular evaluation for IHD, in September 2019 and November 2019 Memoranda. However, on review, the Board presently finds that in regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran’s IHD is rated under Diagnostic Code 7005. The record shows that he has complaints and findings of chest pain, dizziness, fatigue, syncope, shortness of breath (dyspnea), atrial fibrillation, arrhythmia, and excessive sweating, as are associated with the Veteran’s disability. Diagnostic Code 7005 does not specifically list all the Veteran’s symptoms. Nonetheless, atrial fibrillation, arrhythmia, and excessive sweating, are reasonably similar to dyspnea, fatigue, angina, dizziness, and syncope, which are listed under Diagnostic Code 7005. Here, the Veteran’s IHD manifestations are reasonably contemplated by Diagnostic Code 7005. The Board is also cognizant of the Veteran’s hospitalizations. Despite the hospitalizations, the Board finds that they do not render impractical the application of the regular schedular standards. As set forth above, the Veteran’s disability picture is represented in the criteria set forth in the currently assigned 60 percent rating. See also, Director of Compensation Service September 2019 and November 2019 memoranda. 2. Entitlement to a TDIU, based on service-connected IHD, prior to April 23, 2019. The Veteran asserts he has been unemployed since 1998. See July 2016 TDIU application (VA Form 21-8940). He maintains that his unemployment is due, in part, to his service-connected heart disease. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As discussed below, the Board finds the Veteran is entitled to a TDIU award, based solely on the service-connected IHD, for the entire period of the appeal prior to April 23, 2019. The Board acknowledges the AOJ’s March 2017 rating decision that awarded a TDIU, based solely on his service-connected PTSD, effective from September 3, 2013 to June 1, 2014. Thus, this period is not included. Additionally, thereafter, a 100 percent combined disability evaluation has been in effect through the present. There is probative medical evidence that supports the notion that the Veteran’s IHD, in particular, has rendered the Veteran unable to maintain substantially gainful employment in his occupational field of carpentry. The July 2011 VA examiner commented, “As a carpenter I would say that the Veteran’s heart disease does impact, however, it does not impact sedentary employability, especially with a normal METS level and ejection fraction.” The January 2012 VA examiner noted that the Veteran is a carpenter by trade in finding that “he is rendered unemployable for physical employability, but with an ejection fraction of 51% not unemployable for sedentary employability.” An August 2016 VA examiner found that “His physical activities are severely restricted by his cardiac condition – [he] cannot walk more than 1 block on flat ground [without] resting.” The December 2016 VA examiner indicated that the Veteran is rendered unemployable for strenuous activities because of his multiple cardiac problems. See, Mittleider v. West, 11 Vet. App. 181 (1998). The Board acknowledges that an August 2017 VA examiner found no impact of the heart condition on the Veteran’s ability to work, but without any rationale provided, such that the Board assigns this no probative value. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. The Board finds the preponderance of the medical evidence shows that the Veteran cannot work in physically strenuous work, particularly as a carpenter. In this regard, in his July 2016 TDIU application, the Veteran reported that his employment history has been limited to carpentry work, with a high school education. So, there is simply no indication that he ever worked in a sedentary job. Resolving any doubt in the Veteran’s favor, there is sufficient indication that his IHD would preclude him from obtaining and maintaining employment as a carpenter. 3. SMC at the housebound rate, prior to April 23, 2019. The Board infers the issue of entitlement to SMC and finds that the Veteran is entitled to SMC, prior to April 23, 2019. SMC is warranted if a veteran has a service-connected disability rated as total and has additional service-connected disabilities independently rated as 60 percent or more, or by reason of such service-connected disabilities is permanently housebound. 38 U.S.C. § 1114 (s). 38 C.F.R. § 3.350(i)(1) provides that when a veteran has a single service-connected disability rated at 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent, he or she shall be awarded SMC at the housebound rate as provided by 38 U.S.C. § 1114(s). In Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims held that a TDIU based on a single disability will satisfy the statutory requirement of a single disability with a total rating for the purposes of awarding SMC. As VA has a duty to maximize benefits, and SMC benefits are to be accorded when an appellant becomes eligible without need for a separate claim, the Board should consider any SMC that is raised by the record, and grant SMC when the criteria have been met. Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley, 22 Vet. App. 280 (2008); AB v. Brown, 6 Vet. App. 35 (1993). The above grant of TDIU is based on the Veteran’s IHD prior to April 23, 2019. The Veteran is also in receipt of additional service-connected disability benefits (other than IHD) ratable at 60 percent or more. See Bradley, 22 Vet. App. at 280. In particular, the Veteran’s service-connected PTSD has been evaluated as 70 percent disabling during this period of the appeal. Thus, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114 (s), prior to April 23, 2019 is granted. See 38 C.F.R. § 3.350 (i)(1). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.