Citation Nr: 20027906 Decision Date: 04/21/20 Archive Date: 04/21/20 DOCKET NO. 16-42 817 DATE: April 21, 2020 ORDER Entitlement to a disability rating in excess of 30 percent for ischemic heart disease (IHD) prior to November 20, 2015 is denied. Entitlement to a disability rating of 100 percent for IHD from March 5, 2020 is granted. Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) from March 1, 2016 is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and unspecified depressive disorder, is remanded. FINDINGS OF FACT 1. Prior to November 20, 2015, the Veteran’s IHD did not manifest as congestive heart failure; between 3-5 METs with dyspnea, fatigue angina, dizziness, or syncope; or, as left ventricular dysfunction with ejection fraction between 30 and 50 percent. 2. Resolving doubt in the Veteran’s favor, the Veteran’s IHD manifested by a workload of 3 METs or less resulting in dyspnea, fatigue, and angina from March 5, 2020. 3. Throughout the appeal period, the Veteran’s bilateral tinnitus has been assigned a 10 percent disability rating, the maximum schedular rating authorized under Diagnostic Code 6260. 4. The evidence of record demonstrates that the Veteran’s service connected IHD rendered him unable to secure or follow a substantially gainful occupation from March 1, 2016. CONCLUSIONS OF LAW 1. Prior to November 20, 2015, the criteria for a disability rating in excess of 30 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 100 percent disability rating for IHD was met from March 5, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7005. 3. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.87, Diagnostic Code 6260. 4. The criteria for TDIU have been met from March 1, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to November 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2011 and January 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran originally filed a service connection claim for PTSD alone, the record also contains a psychiatric diagnosis of unspecified depressive disorder. Accordingly, as reflected on the title page of this decision, the Board recharacterized the issue on appeal to contemplate the Veteran’s psychiatric symptoms, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a claim is determined by the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). The January 2013 rating decision denied the Veteran’s claim for service connection for a bilateral foot disability. This claim was included in the January 2013 Notice of Disagreement and listed in the July 2016 Statement of the Case. However, the Veteran did not include the bilateral foot disability claim in his August 2016 substantive appeal and the issue has not been certified to the Board. Therefore, it is not before the Board as part of the current appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for TDIU is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. at 452-54. In this case the Veteran has asserted that his IHD prevented him from working since November 20, 2015. The Board interprets this statement as an indication that the Veteran feels he is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability at issue on appeal. Accordingly, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required 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,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Ischemic heart disease The Veteran seeks a higher initial rating for his service-connected ischemic heart disease (IHD). The Veteran’s IHD is rated as 30 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7005, effective from August 31, 2010; 100 percent disabling from November 20, 2015; and 60 percent disabling from March 1, 2016. The applicable rating period is from August 31, 2010, the effective date for the award of service connection through the present. See 38 C.F.R. § 3.400. However, the Board will only consider whether a higher rating is warranted prior to November 20, 2015 and after March 1, 2016 because the Veteran has been assigned a 100 percent rating, the highest rating assignable, from November 20, 2015 to March 1, 2016. Ischemic heart disease, characterized by damage or disease in the heart’s major blood vessels, is scheduled under the ratings pertaining to diseases of the heart. Specifically, ischemic heart disease is rated under Diagnostic Code 7005. 38 C.F.R. § 4.104. Under Diagnostic Code 7005, used for evaluating arteriosclerotic heart disease, a 30 percent rating is warranted if a workload of greater than 5 and not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted if there had been more than one episode of acute congestive heart failure in the past year; or if a workload of greater than 3 but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30-50 percent. A 100 percent rating is warranted if there is chronic congestive heart failure; or if a workload of 3 METs or less results 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, Diagnostic Code 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. Increased Rating prior to November 20, 2015 A January 2011 clinical entry noted that the Veteran’s echocardiogram showed some mild inferior wall hypokinesis with left ventricular ejection fraction of 59 percent. The Veteran had been to cardiac rehabilitation and had absolutely no chest discomfort or shortness of breath with exercise. In August 2011 the Veteran submitted an IHD Disability Benefits Questionnaire. The examiner noted the Veteran was taking continuous medication for the treatment of his heart condition. The examiner reported a history of percutaneous coronary intervention and myocardial infarction. There was no history of congestive heart failure. There was evidence of cardiac hypertrophy and dilatation. This examiner only conducted an interview based METs test. The interview based METs test showed that the Veteran’s level of activity indicated a workload of greater than 5 METs but not greater than 7 METs but did not indicate which symptoms the Veteran experienced at that workload. The examiner stated Veteran’s IHD did not impact his ability to work. The Veteran underwent a contract heart examination in September 2011. The Veteran reported shortness of breath, dizziness and fatigue. The Veteran denied continuous medication for his heart condition. The examination showed no evidence of congestive heart failure, cardiomegaly, or cor pulmonale. The chest x-ray and EKG showed no evidence of cardiac hypertrophy or dilatation. The interview based METs test showed that the Veteran’s level of activity indicated a workload of greater than 5 METs but not greater than 7 METs with fatigue. The examiner reported a left ventricular ejection fraction of 60 percent. The Veteran underwent an exercise stress test in April 2015. The Veteran achieved a workload of 5 METs. The test was terminated due to fatigue. The examiner reported a left ventricular ejection fraction of 71 percent. Based on the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for IHD prior to November 20, 2015. The evidence shows that the Veteran had no episodes of acute congestive heart failure prior to November 20, 2015 and testing has not shown left ventricular dysfunction with an ejection fraction of 50 percent or less, nor has a workload between 3 and 5 METs resulted in dyspnea, fatigue, angina, dizziness, or syncope. As the preponderance of the evidence is against the claim for a disability rating in excess of 30 percent for IHD prior to November 20, 2015, the benefit of the doubt doctrine does not apply, and the claim for increase is denied. Increased Rating after March 1, 2016 The Veteran underwent an VA IHD examination in June 2016. The examiner noted the Veteran required continuous medication for control of his heart condition. There was no evidence of congestive heart failure, cardiac arrhythmia, or heart valve condition. A September 2010 angioplasty and a November 2015 coronary artery bypass surgery were noted. There was evidence of cardiac hypertrophy. There was no evidence of cardiac dilatation. The chest x-ray showed mild COPD changes. The echocardiogram showed mildly increased left ventricular wall thickness with a left ventricular ejection fraction of 65 percent. Exercise stress testing was not performed due to patient risk. The interview based METs test showed that the Veteran’s level of activity indicated a workload of greater than 3 METs but not greater than 5 METs with symptoms of fatigue and dizziness. The examiner stated the METs level was solely due to the Veteran’s heart condition. The examiner remarked the Veteran’s heart condition impacts his ability to work due to dizziness and fatigue with prolonged activity. The Veteran underwent an VA IHD examination in November 2017. The examiner reported a small defect of moderate severity in the inferior region on the stress and rest images. The examiner noted the Veteran required continuous medication for control of his heart condition. There was no evidence of congestive heart failure, cardiac arrhythmia, or heart valve condition. A September 2010 angioplasty and a November 2015 coronary artery bypass surgery were noted. There was evidence of cardiac hypertrophy and cardiac dilatation. The left ventricular ejection fraction was 50-55 percent. Exercise stress testing was not performed because the Veteran had a pharmacologic nuclear test. The interview based METs test showed that the Veteran reported dyspnea at the lowest level of activity, 1-3 METs. The examiner stated the METs level was solely due to the Veteran’s heart condition. The examiner remarked the Veteran’s heart condition impacts his ability to work due to shortness of breath with minimal exertion. The Veteran has chest pain lasting 3-5 minutes. The Veteran cannot perform any work that requires walking more than 50 feet, climbing five steps, or any lifting. The Veteran underwent an exercise stress test in February 2018. The Veteran achieved a workload of 7 METs. The examiner reported abnormal left ventricular wall motion with a left ventricular ejection fraction of 60 percent. The Veteran underwent an VA IHD examination in August 2018. The examiner noted the Veteran required continuous medication for control of his heart condition. There was no evidence of congestive heart failure, cardiac arrhythmia, or heart valve condition. A November 2015 coronary artery bypass surgery was noted. There was evidence of cardiac hypertrophy and cardiac dilatation. The left ventricular ejection fraction was 45-50 percent. Exercise stress testing was not performed, and the examiner did not provide any reasons why it could not be performed. The interview based METs test showed that the Veteran reported dyspnea at a workload of greater than 3 METs but not greater than 5 METs. The examiner stated the METs level was solely due to the Veteran’s heart condition. The examiner remarked the Veteran’s heart condition impacts his ability to work due to shortness of breath or angina on heavy exertion. The Veteran underwent an VA IHD examination in January 2020. The examiner noted the Veteran required continuous medication for control of his heart condition. There was no evidence of congestive heart failure, cardiac arrhythmia, or heart valve condition. There was evidence of cardiac hypertrophy and cardiac dilatation. The left ventricular ejection fraction was 45-50 percent. Exercise stress testing was not performed because the Veteran was unable to walk on a treadmill without chest pain. The interview based METs test showed that the Veteran reported dyspnea and angina at a workload of greater than 3 METs but not greater than 5 METs. The examiner stated the METs level was solely due to the Veteran’s heart condition. The examiner remarked the Veteran’s heart condition impacts his ability to work due to his limited METs workload. In March 2020 the Veteran submitted an IHD Disability Benefits Questionnaire. The examiner noted the Veteran was taking continuous medication for the treatment of his heart condition. There was no history of congestive heart failure. There examiner noted no evidence of cardiac hypertrophy or dilatation. The examiner noted mitral and aortic valve conditions. This examiner only conducted an interview based METs test. The interview based METs test showed that the Veteran reported dyspnea, fatigue, and angina at the lowest level of activity, 1-3 METs. The examiner stated Veteran’s IHD limited the Veteran’s ability to work. The examiner reported the Veteran’s METs level limitation was not solely due to the heart condition. The examiner stated the limitation in METs is due to multiple factors and it is not possible to estimate what percentage is due solely to the heart condition. The examiner noted the Veteran’s obesity and osteoarthritis contributed to the Veteran’s limitation of METs level. In a situation where it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disability, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Here, the Board finds that Mittleider is applicable and doubt must be resolved in the Veteran’s favor regarding the estimated 1-3 METs shown in the March 2020 IHD Disability Benefits Questionnaire. As the examiner could not indicate exactly what disabilities were causing the Veteran’s limitation, the Board finds that it is reasonable to attribute all impairment to his IHD. Based on that determination, pursuant to the criteria under DC 7005, a 100 percent rating is warranted from the date of the examination, March 5, 2020. The Board notes the November 2017 VA IHD examination showed interview based METs testing revealed dyspnea at the lowest level of activity, 1-3 METs, which corresponds to a 100 percent rating. However, the Veteran achieved a workload of 7 METs in exercise stress testing in February 2018, and the August 2018 VA IHD interview based METs testing showed that the Veteran reported dyspnea at a workload of greater than 3 METs but not greater than 5 METs. Accordingly, prior to March 5, 2020, the Board finds the Veteran’s IHD disability more closely approximated a 60 percent disability rating. At no time during the appeal period was congestive hearth failure shown, nor was a left ventricular dysfunction with an ejection fraction of less than 30 percent demonstrated. 2. Tinnitus The Veteran is seeking an increased rating for bilateral tinnitus. The RO denied the Veteran’s request because a rating of 10 percent is the maximum schedular allowance under Diagnostic Code 6260. In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit found that 38 C.F.R. § 4.25 (b) and 38 C.F.R. § 4.87, Diagnostic Code 6260 limit a Veteran to a single disability rating for tinnitus, regardless of whether the tinnitus is unilateral or bilateral. The Veteran’s service-connected tinnitus has been assigned the maximum schedular rating available for tinnitus of 10 percent. 38 C.F.R. § 4.87, Diagnostic Code 6260. As there is no legal basis upon which to award a higher schedular evaluation for tinnitus, the Veteran’s appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. TDIU The Veteran contends that his service connected IHD prevented him from securing or following a substantially gainful occupation from November 20, 2015. The Board notes the Veteran is already in receipt of a 100 percent disability rating for IHD from November 20, 2015 to March 1, 2016. The receipt of a 100 percent schedular disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, Bradley recognized that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation under 38 U.S.C. § 1114(s). Bradley, 22 Vet. App. at 293-94 (noting that although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation under 38 U.S.C. § 1114(s)). However, in this case, the Veteran is not in receipt of another disability separately rated at 60 percent or more for the period from November 20, 2015 to March 1, 2016. Accordingly, a TDIU award will not be considered for this period. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or 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. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). His IHD is rated at 60 percent disabling from March 1, 2016. Therefore, the Veteran meets the schedular criteria for a TDIU from March 1, 2016. The remaining question is whether the Veteran’s service connected IHD caused him to be unable to secure or follow a substantially gainful occupation. The central inquiry is whether the Veteran’s service connected IHD alone is of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In the Veteran’s TDIU application form, the Veteran indicated that he completed high school through the ninth grade and completed training in air-conditioning and refrigeration in 1972. The Veteran stated his IHD prevented him from securing gainful employment since November 20, 2015. The Veteran underwent an VA IHD examination in November 2017. The examiner remarked the Veteran’s heart condition impacted his ability to work due to shortness of breath with minimal exertion. The Veteran has chest pain lasting 3-5 minutes. The Veteran cannot perform any work that requires walking more than 50 feet, climbing five steps, or any lifting. Based on this evidence, the Board finds that the Veteran’s service connected IHD likely precluded him from obtaining or maintaining gainful employment from March 1, 2016. The Veteran has a limited educational level, and he would only be capable of unskilled labor outside of his own work experience. The functional impairments described by the November 2017 VA examiner precludes any gainful occupations otherwise available to him. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence of record establishes that his IHD was significant enough to preclude him from securing or following a substantially gainful occupation. Accordingly, entitlement to a TDIU is granted from March 1, 2016. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded 2. Entitlement to service connection for bilateral hearing loss is remanded Regarding the Veteran’s claims for entitlement to service connection for bilateral hearing loss and an acquired psychiatric disability, remand is required to provide the Veteran with VA opinions. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA’s duty to assist includes providing a medical opinion when it is necessary to make a decision on a claim. 38 U.S.C. § 5103 (d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence). The Veteran was provided with a VA hearing loss examination in August 2011. The examiner conceded in-service noise exposure but did not provide an etiology opinion for bilateral hearing loss because the Veteran did not have hearing loss for VA purposes at that time. Here, a June 2014 VA audiology outpatient note contains an assessment of bilateral hearing loss for VA purposes. Additionally, the August 2011 VA examiner conceded the Veteran experience in-service noise exposure. Thus, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with service. Accordingly, remand is required for an addendum opinion. Regarding service connection for an acquired psychiatric disorder, the Veteran was provided with a VA examination in March 2020. The Veteran was diagnosed with unspecified depressive disorder. The examiner opined there was no evidence the Veteran’s depression was related to his service. However, the examiner stated the Veteran’s depression could be correlated with his service-connected cardiac issues. Accordingly, remand is required for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current hearing loss disability is at least as likely as not (50 percent or greater probability) related to service, to include his in-service combat noise exposure in Vietnam. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current unspecified depressive disorder is at least as likely as not (50 percent or greater probability) caused by or aggravated beyond its natural progression by his service-connected IHD. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.