Citation Nr: 21000225 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-37 902 DATE: January 4, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for coronary artery disease (CAD) prior to December 23, 2019 is denied. Entitlement to a rating in excess of 60 percent for CAD from December 23, 2019 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to December 23, 2019, the Veteran’s CAD did not result in congestive heart failure; workload of 7 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; left ventricular dysfunction with an ejection fraction of 50 percent or less; or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. 2. From December 23, 2019, the Veteran’s CAD did not result in chronic congestive heart failure; 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 or less. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent prior to December 23, 2019 for CAD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.100, 4.104, Diagnostic Code (DC) 7005. 2. The criteria for a disability rating in excess of 60 percent from December 23, 2019 for CAD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.100, 4.104, DC 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1966 to February 1970, to include service in the Republic of Vietnam. 1. Initial Rating for CAD in Excess of 10 Percent Prior to December 23, 2019 Background and Legal Criteria An October 2012 rating decision granted entitlement to service connection for CAD and assigned a 10 percent rating under DC 7005, effective January 12, 2011. The Veteran appealed the assigned effective date and the Board remanded the Veteran’s CAD increased rating claim in February 2019. The agency of original jurisdiction (AOJ) issued a July 2020 supplemental statement of the case (SSOC). In the SSOC, it was stated that “[w]e increased the evaluation of your service-connected [CAD] to 60 percent effective December 23, 2019. (This is considered a partial grant of benefits sought on appeal.) This is the first notice of our decision. You will receive a separate rating decision and formal letter of notification in the near future.” While the referenced rating decision has not yet been issued, the Board will treat the SSOC as indicating the AOJ’s favorable finding of an increased 60 percent rating for CAD as of December 23, 2019. As noted, the Veteran has been assigned a rating under DC 7005 (Arteriosclerotic heart disease ([CAD]). Under DC 7005, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where a 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 dilation on electrocardiogram, echocardiogram, or X-ray. 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. Analysis Upon review, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran’s CAD prior to December 23, 2019. During this appeal period, that is from January 12, 2011 to December 23, 2019, the relevant medical evidence of record included a VA examination report, VA treatment records and private medical records. The Veteran was afforded a VA examination in March 2012 and a Heart Conditions Disability Benefits Questionnaire (DBQ) was completed. A diagnosis was noted of atherosclerotic cardiovascular disease, with a date of diagnosis noted of March 2003. It was noted that continuous medication was required for control of the Veteran’s heart condition. It was noted that the Veteran had not had congestive heart failure. Under a section related to diagnostic testing, it was noted that there was not evidence of cardiac hypertrophy or cardiac dilatation. Referenced were the results of a March 2012 echocardiogram, which noted normal wall motion and wall thickness and a left ventricular ejection fraction of 60 percent. The DBQ also included the results of interview-based METs testing, which noted angina at greater than 7 to 10 METs. The examiner noted that the METs level limitation was not due solely to the heart condition and that “[t]he limitation in METs level is due to multiple factors; it is not possible to accurately estimate this percentage.” The examiner further stated that “[r]egarding MET[s], they are limited not only by [ischemic heart disease], but also by Aortic valve stenosis, [status post] mechanical valve replacement, osteoarthritis, and [g]eneral deconditioning related to age” and that “[e]stimation of MET[s] related solely to cardiac condition is more accurately measured by obtaining left ventricular ejection fraction that is normal as per echocardiogram.” The examiner noted that the Veteran’s heart condition did not impact the Veteran’s ability to work and it was noted that the Veteran’s current occupation was “construction; he is self-employed.” The VA and private treatment records for this period did not document any other METs levels that show a severity greater than determined by the VA examiner. Moreover, these records did not show congestive heart failure; ejection fraction of 50 percent or less; or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. While these records contained relevant test results, such did not meet the criteria for a higher rating under DC 7005. In this regard, private medical records included results of a November 2012 stress test, which noted an impression that the Veteran achieved an “estimated 8.1 METs.” Private treatment records also included results of November 2012 nuclear myocardial perfusion imaging, with the impression noting a “calculated ejection fraction of 61%” and that “[l]eft ventricular size was normal…Transient ischemic dilatation was not present.” Additional private treatment records included a November 2015 echocardiogram, which noted findings of “[n]ormal left ventricular size per gender. Normal left ventricular ejection fraction, calculated…is 69%. Moderate increase in left ventricular wall thickness per gender.” Private treatment records also included the results of an April 2016 stress test, with a conclusion noted of “[m]yocardial perfusion imaging was normal…Compared to the prior study report of [November 2012], there were no significant changes noted.” It was also stated that left ejection fraction “was normal, with calculated [ejection fraction] of 55%” and “normal left ventricular size. The right ventricle is normal in size. Transient dilatation was not present.” VA treatment records included the results of a September 2016 echocardiogram, which included findings of “[t]he left ventricular chamber size, wall thickness, and systolic function are normal with estimated [ejection fraction] 65-70%” and an overall impression stating “[n]ormal [left ventricular] systolic function with normal diastolic Doppler patterns.” VA treatment records also included the results of a September 2016 stress test, with findings noted of “a maximum workload of 10.40 METs” and myocardial perfusion scan findings noting left ventricular ejection fraction of 55 and 56 percent and an impression of “[n]ormal [left ventricular ejection fraction].” An October 2016 VA primary care treatment record stated “[r]eviewed the results of t[he] stress [electrocardiogram] and [myocardial perfusion imaging], wh[i]ch were n[]ormal or negative for myocardial ischemia of previous [myocardial infarction], normal echocardiogram with normal [left ventricular ejection fraction] and heart wall motion.” Upon review of the relevant medical records during this time period, such did not meet the criteria for a higher rating under DC 7005. First, METs testing did not show that a workload of 7 METs or less resulted in symptoms, as would be required for the next higher 30 percent (or higher) rating. In this regard, the March 2012 DBQ noted symptoms at greater than 7 to 10 METs (and also noted the METs level limitation was not due solely to the heart condition), a November 2012 stress test noted an “estimated 8.1 METs” and a September 2016 stress test noted findings of “a maximum workload of 10.40 METs.” Second, left ventricular dysfunction with an ejection fraction of 50 percent or less was not shown, as would be required for a 60 percent (or higher) rating. In this regard, left ventricular ejection fraction was noted as 60 percent (March 2012 echocardiogram), 61 percent (November 2012 nuclear myocardial perfusion imaging), 69 percent (November 2015 echocardiogram), 55 percent (April 2016 stress test), 65 to 70 percent (September 2016 echocardiogram) and 55 and 56 percent (September 2016 stress test). Third, evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray was not shown, as would be required for the next higher 30 percent rating. In this regard, the March 2012 DBQ noted that there was not evidence of cardiac hypertrophy or cardiac dilatation and November 2012 and April 2016 stress test results referenced that “[t]ransient ischemic dilatation was not present.” Also, as noted, private treatment records included a November 2015 echocardiogram that noted findings of “[m]oderate increase in left ventricular wall thickness per gender.” While a moderate increase in wall thickness was noted, this was not characterized as cardiac hypertrophy. See Dorland’s Illustrated Medical Dictionary 898 (32nd ed. 2012) (defining cardiac hypertrophy as “enlargement of myocardial cells and hyperplasia of nonmuscular cardiac components”). In addition, VA treatment records included the results of a September 2016 echocardiogram that noted findings of “[t]he left ventricular…wall thickness…[is] normal.” As such, evidence of cardiac hypertrophy was not shown by the VA and private treatment records during the relevant period. Fourth, congestive heart failure was not shown, as would be required for a 60 percent (or higher rating). In this regard, the March 2012 DBQ noted that the Veteran had not had congestive heart failure and such was not otherwise shown by the relevant medical evidence. In review, the medical evidence during this period did not show that the criteria for a higher rating under DC 7005 were met. The Board has also considered the Veteran’s lay statements. On the October 2015 VA Form 9, the Veteran stated that “[m]y heart is more severe than the evaluation suggest.” While acknowledging this statement, such did not relate to the criteria for a higher rating under DC 7005. The Veteran also stated on a September 2013 notice of disagreement (NOD) that “[d]ue to my constant chest pain and angina I am appealing the percentage of my decision.” To the extent that the Veteran was referencing chest pain upon exertion, such was also shown by medical evidence and is contemplated by the assigned rating under DC 7005. See October 2012 VA Treatment Record (referencing the Veteran as “[h]aving stable exertional angina”). In this regard, DC 7005, as noted, specifically includes as criteria a workload of certain METs resulting in angina, which indicates that DC 7005 therefore contemplates exertional chest pain or angina. The Board acknowledges the Veteran’s report of chest pain and angina, but the presence of these symptoms alone does not warrant a higher rating under DC 7005, as the criteria require angina to be the result of a certain workload of METs, which was not shown by medical evidence of record discussed above. Specifically, the March 2012 DBQ and November 2012 and September 2016 stress tests all noted METs testing results that were not sufficient to meet the criteria for a 30 percent or higher rating. While the Veteran is competent to describe experiencing chest pain, he is not competent to address the criteria under DC 7005 related to METs, as this is a medical issue that would require education, training or experience to address, and an applicable note indicates that the METs criteria under DC 7005 requires laboratory testing or estimation by a medical examiner. See 38 C.F.R. § 3.159(a)(1), (2) (defining competent medical evidence and competent lay evidence); 38 C.F.R. § 4.104, Note (2) (stating that when “a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner…may be used); see generally Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent the Veteran’s September 2013 NOD was referencing nonexertional chest pain (by way of the reference to “constant chest pain”), this symptom has not been related to his service-connected CAD by competent evidence. In this regard, medical evidence referenced chest pain as related to anxiety or generally as atypical and did not relate this symptom to CAD. See October 2014 VA Treatment Note (including an assessment of “Anxiety – chronic chest pain”); March 2016 Dr. W.B. Private Treatment Record (noting that the Veteran “continues to have some chest discomfort that he states could be anxiety” and noting an impression of “heart disease…without angina pectoris”); December 2016 VA Psychiatric Treatment Note (stating that the Veteran “[d]id have to go to the ER not long ago due to chest tightness and [shortness of breath], but was anxiety, not cardiac”); June 2018 Dr. S.J. Private Treatment Record (stating that the Veteran “was recently transferred to…ER 4/2018, for [complaint of] chest pressure. All testing was negative for cardiovascular dysfunction”); June 2018 VA Cardiology Treatment Record (stating that the Veteran “complains of pressure in his chest which is superficial that can be brought on by just touching his chest. [Veteran] states he’s had this for the past 10 years” and noting separate impressions of CAD and “Atypical chest pain”); June 2019 VA Cardiology Treatment Record (referencing “occa[si]onal chest pain…for the past 10 years” and noting separate impressions of CAD and “Atypical chest pain for 10 years”). As such, the Board finds that an increased rating for the Veteran’s service-connected CAD is not warranted for nonexertional chest pain. The Veteran also stated on the September 2013 NOD that “I feel that the benefit of the doubt doctrine was not considered.” The Board has considered the benefit of the doubt doctrine, but finds that, in this case, the preponderance of the evidence is against an increased initial rating prior to December 23, 2019 and therefore such doctrine is not applicable. See Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001) (“the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant”) Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990) (“if a fair preponderance of the evidence is against a veteran’s claim, it will be denied and the ‘benefit of the doubt’ rule has no application”). The Board has also considered the Veteran’s representative’s contentions. In a December 2020 Written Brief Presentation, it was stated that: The December 2019 examination is the credible one. The March 2012 examination lack probative value. It lacks credibility. The [V]eteran was not working in construction. He was retired after years with VA using his counseling degrees. He had a business for while after the VA but he had sold it before the examination. Notice also the Social Security retirement in 2007. The CAPRI records show that the [V]eteran was consistent whereas the 2012 heart examiner was not in touch with the facts. It requ[ire]s some explanation to believe that a former desk worker in his 60s is now starting a construction career….the Board should grant a 60% evaluation for the appeal period. In review, the representative, essentially, asserted that the March 2012 VA examination was based on an inaccurate factual premise related to the Veteran’s employment, that this therefore rendered the examination lacking in credibility and probative value and that accordingly a 60 percent rating should be granted for the entire appeal period based on the results of the December 2019 VA examination. The Board has considered the representative’s contentions, but finds them without merit. First, while the representative indicated that the Veteran “was not working in construction,” other evidence of record referenced the Veteran as working in construction or similar situations. See November 2014 Mental Disorders DBQ (noting that the Veteran “still rehabs real estate for sale” and stating that “[h]e enjoys purchasing real estate, living there and improving the property for sale”); February 2018 VA Form 21-526EZ (containing a statement from private Dr. N.M. that referenced the Veteran’s profession as renovating houses); August 2019 Sleep Apnea DBQ (stating “[c]urrent OR if retired/unemployed, previous occupation: construction”). Second, even assuming (without deciding) that the DBQ was based on an inaccurate factual premise as to the Veteran working in construction, it is not clear how this would impact or negate the probative value of other portions of the DBQ where there was no indication such portions were based on the Veteran’s occupation, such as the various findings related to the criteria under DC 7005 involving congestive heart failure, what METs workload results in symptoms, left ventricular ejection fraction measurements, or the presence of cardiac hypertrophy or dilation. Third, even assuming (without deciding) that the DBQ was based on an inaccurate factual premise as to the Veteran working in construction and that this somehow rendered the entirety of the examination lacking probative value, various other remaining evidence of record, discussed in detail above, dated prior to the December 23, 2019 VA examination showed that the Veteran did not meet the criteria under DC 7005 for a higher rating. Overall, the Board has considered the representative’s contentions, but for the reasons outlined, finds them without merit. In sum, the Board finds that, prior to December 23, 2019, the Veteran’s CAD did not result in congestive heart failure; workload of 7 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; left ventricular dysfunction with an ejection fraction of 50 percent or less; or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. As such, the Board concludes that the criteria for an initial disability rating in excess of 10 percent prior to December 23, 2019 for CAD have not been met and, to this extent, the Veteran’s claim is therefore denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.100, 4.104, DC 7005. 2. Increased Rating for CAD in Excess of 60 Percent From December 23, 2019 Upon review, the Board finds that a rating in excess of 60 percent is not warranted for the Veteran’s CAD from December 23, 2019. During this appeal period, the relevant medical evidence included a December 23, 2019 VA Heart Conditions DBQ and related test results. The DBQ noted a diagnosis of CAD, with a date of diagnosis noted of 2003. Under the medical history section, it was noted that “[s]ymptoms at time of onset include – feeling winded, dizziness” and that the “condition has stayed the same.” It was noted that continuous medication was required for control of the Veteran’s heart condition. It was noted that the Veteran had not had congestive heart failure. Under a section related to diagnostic testing, it was noted that there was not evidence of cardiac dilatation, but that there was evidence of cardiac hypertrophy documented on a January 2020 echocardiogram. It was also noted that the January 2020 echocardiogram noted normal wall motion and wall thickness and a left ventricular ejection fraction of 81 percent. Also noted were the results of a December 2019 EKG, noted as “consistent with old infarction,” and the results of a December 2019 chest x-ray, noted as normal. The DBQ also included the results of interview-based METs testing, which noted dyspnea, fatigue, angina and dizziness at greater than 3 to 5 METs. The examiner noted that the METs level limitation was due solely to the Veteran’s heart condition. It was also noted that the Veteran’s heart condition impacted his ability to work and it was stated “general fatigue with walking more than 1-2 blocks and doing light yard work.” Upon review of the relevant medical records during this time period, such did not meet the criteria for a higher rating under DC 7005. First, METs testing did not show that a workload of 3 METs or less resulted in symptoms, as would be required for the next higher 100 percent rating. In this regard, the only METs testing of record during this period was from the December 2019 DBQ, which noted symptoms at greater than 3 to 5 METs. Second, left ventricular dysfunction with an ejection fraction of less than 30 percent was not shown, as would be required for the next higher 100 percent rating. In this regard, the only left ventricular ejection fraction of record during this period was noted as 81 percent, per the January 2020 echocardiogram and December 2019 DBQ. Third, chronic congestive heart failure was not shown, as would be required for the next higher 100 percent rating. In this regard, the December 2019 DBQ noted that the Veteran had not had congestive heart failure. In review, the medical evidence during this period did not show that the criteria for a higher rating under DC 7005 were met. The Board notes that the there are no lay statements from the Veteran during this appeal period. The Board has also considered the Veteran’s representative’s contentions. In the previously discussed December 2020 brief, it was stated that “[t]he Board should grant a 60% evaluation for the appeal period and remand for consideration of TDIU where not mooted by a schedular 100% rating.” This brief, essentially, did not advocate for an increased rating in excess of 60 percent from December 23, 2019, but advocated for a 60 percent rating for the entire appeal period (which was addressed above) and for entitlement to a TDIU (which will be addressed in the remand portion below). In sum, the Board finds that, from December 23, 2019, the Veteran’s CAD did not result in chronic congestive heart failure; 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 or less. As such, the Board concludes that the criteria for a disability rating in excess of 60 percent from December 23, 2019 for CAD have not been met and, to this extent, the Veteran’s claim is therefore denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.100, 4.104, DC 7005. REASONS FOR REMAND Entitlement to a TDIU A claim for a TDIU is part of an increased rating claim when such a claim is expressly raised by a veteran or reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As addressed above, the Veteran’s CAD increased rating claim was on appeal before the Board. In the Veteran’s representative’s December 2020 brief, it was stated that “[t]here is also the issue of [TDIU]…The [V]eteran retired in 2007 because of the heart attack….The Board should…remand for consideration of TDIU where not mooted by a schedular 100% rating.” As such, the issue of entitlement to a TDIU has been expressly raised during an increased rating claim and it is therefore also on appeal before the Board. The Board finds that remand is required to attempt to obtain any Social Security Administration (SSA) disability benefits records that may be available. In this regard, of record is a November 2019 SSA Inquiry Results document that listed a disability onset date of January 2007 and an entitlement date of December 2007. As such, it appears that the Veteran may have been granted SSA disability benefits in 2007. As any SSA records appear likely to be relevant to the Veteran’s TDIU claim, the Board finds that remand is required for VA to attempt to obtain any SSA disability records available. See 38 C.F.R. § 3.159(c)(2) (“VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency. These records include but are not limited to… records from other Federal agencies, such as the [SSA]”). In addition, the AOJ did not directly adjudicate the issue of entitlement to a TDIU and, therefore, any appropriate development related to this issue has not been conducted. As such, while on remand, the AOJ should undertake any development it may deem appropriate in regard to the Veteran’s TDIU claim. The Board notes that a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) is not of record and that, as this form provides information relevant to a TDIU claim, the Veteran is invited to submit this form on remand. The matters are REMANDED for the following action: Attempt to obtain any SSA disability records available. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.