Citation Nr: 21003174 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-06 309 DATE: January 19, 2021 ORDER Entitlement to service connection, to include on a secondary basis, for type II diabetes mellitus is denied. Entitlement to an initial rating in excess of 30 percent for ischemic heart disease (IHD), to exclude the periods with 100 percent ratings from January 9, 2014 to May 1, 2014, and from September 13, 2019, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s type II diabetes mellitus did not originate in service and is not otherwise related to his active service or to a service-connected disability. 2. For the periods from November 6, 2012 to January 9, 2014 and from May 1, 2014 to September 13, 2019, the Veteran’s IHD has manifested in no less than an ejection fraction of 55 percent and has manifested in a workload of greater than five METs; and there is no evidence of congestive heart failure. 3. The evidence does not show that the Veteran’s service-connected disabilities alone rendered him unable secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for type II diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. For the periods from November 6, 2012 to January 9, 2014, and from May 1, 2014 to September 13, 2019, the criteria for an initial rating in excess of 30 percent for IHD, have not been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.104, Diagnostic Code (DC) 7005. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1968 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2012 (type II diabetes mellitus) and February 2013 (IHD) rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran and his wife testified at a videoconference hearing. The transcript of the hearing is of record. During the pendency of his appeal, the Veteran had two stents placed due to his myocardial infarction on January 9, 2014. In a March 2014 rating decision, a temporary total rating was assigned from January 9, 2014, the date of his stent surgery, to May 1, 2014, and a 30 percent rating was assigned thereafter. Then, a June 2020 rating decision assigned a 100 percent rating, effective September 13, 2019, the date of the September 2019 VA examination showing a finding of chronic congestive heart failure. As the Veteran was granted total ratings from January 9, 2014 to May 1, 2014, and from September 13, 2019, for his service-connected IHD, the rating during these periods will not be addressed by the Board. Cf. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the remaining periods on appeal for consideration for the IHD increased rating claim is from November 6, 2012 to January 9, 2014, and from May 1, 2014 to September 13, 2019. Service Connection Entitlement to service connection, to include on a secondary basis, for type II diabetes mellitus. The Veteran contends that his type II diabetes mellitus had its onset during active service. Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to § 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. at 448 (1995). The Veteran’s service treatment records (STRs) are absent for complaints, treatment, or diagnoses of type II diabetes mellitus. Instead, the STRs consistently noted normal/negative glucose levels on urinalysis testing and normal endocrine system on clinical evaluation throughout active service. The Veteran also denied having diabetes or having sugar or albumin in his urine. Specifically, reports of medical examinations in June 1957, March 1968, February1972, January 1974, September 1977, August 1981, June 1983, November 1985, June 1987, June 1988, and May 1993 noted a normal endocrine system on clinical evaluation. See November 2013 STR – Medical and December 2013 STR – Medical. Reports of medical history in March 1968, August 1981, June 1987, June 1988, and May 1993 noted the Veteran denied currently having or previously having sugar or albumin in his urine. See November 2013 STR – Medical. Urinalysis testing in November 1985, March 1986, May 1986, October 1986, November 1986, June 1987, May 1988, March 1990, October 1992, April 1993, and May 1993 indicated negative results or results within normal range. See November 2013 STR – Medical. The Veteran also indicated on dental health questionnaires in June 1978, October 1979, May 1982, January 1986, June 1989, February 1991, March 1992, and April 1993 that he has never had and did not at the time of respective questionnaire have diabetes. See November 2013 STR – Dental. Additionally, a March 1986 record noted a positive family history of diabetes mellitus but specifically noted the Veteran’s prior medical history was negative for illnesses except for sinusitis and an assessment of possible hypertension. See November 2013 STR – Medical. A June 1986 STR noted the Veteran denied any current medications. See id. A STR that included the Veteran’s problem list of health conditions between 1969 to 1992 did not mention diabetes. See id. The STRs did not include any complaints of, treatment for, or diagnosis of type II diabetes mellitus and instead indicated there was no such diagnosis during active service. Post-service, a December 1993 general medical VA examination only noted diagnoses of mild essential hypertension, status post anal fistulotomy, and mild external hemorrhoids. See December 1993 VA Examination. His endocrine system was noted as normal and there was no mention of diabetes. Private treatment records from Care View Medical Group from 2002 to 2005 did not include any treatment for or diagnosis of diabetes. See April 2005 Medical Treatment Record. A January 2002 yearly physical examination made no mention of diabetes mellitus. See id. Instead, the record noted the Veteran’s assessment of hypertension and exogenous obesity. A February 2003 urinalysis noted the Veteran’s glucose levels were within normal range. See id. The first instance of elevated glucose levels outside of normal range was in January 2004 and February 2005 urinalysis testing. See id. The first mention of anti-diabetic medication of Metformin HCL was in an April 2008 list of active medications that noted this medication was last filled in October 2007. See March 2012 Medical Treatment Record – Government Facility. The first diagnosis of type II diabetes mellitus noted was in March 2008. See id. In a May 2012 private treatment record, the Veteran’s treating physician, Dr. R.G.H., from Care View Medical Group, noted that he served as the Veteran’s primary physician for over 15 years and that many of his medical problems have been present for over 30 years which include type II diabetes mellitus, now insulin dependent. See May 2012 Medical Treatment Record – Non-Government Facility. A February 2005 private treatment record noted Dr. R.G.H. has been the attending physician for the Veteran for the past eight years, thus approximating sometime in 1997 that the Veteran began seeing Dr. R.G.H. See April 2005 Medical Treatment Record – Non-Government Facility. A May 2014 private treatment record noted an assessment of well controlled diabetes. See May 2014 Medical Treatment Record – Non-Government Facility. In a June 2018 letter, Dr. R.G.H. noted the Veteran has been diagnosed with type II diabetes since 1990 and was currently treated to control his diabetes. See July 2018 Medical Treatment Record – Non-Government Facility. In a March 2019 VA opinion, after a detailed review of the claims file and examination of the Veteran, the examiner opined that the Veteran’s diabetes was less likely than not incurred during active duty service. See March 2019 C&P Exam. In support of the opinion, the examiner noted that the Veteran did not start treatment for his diabetes until 2007, approximately 14 years after separation from active duty service, with metformin and diabetic supplies being issued at that time. The examiner also noted that the Veteran’s general medical VA examination in December 1993 did not report diabetes and that Dr. R.G.H.’s medical records from 2000 to 2005 showed no diagnosis of diabetes. The examiner also noted that the Veteran’s STRs showed no diagnosis of diabetes. The examiner also opined that it is less likely as not that the Veteran’s diabetes mellitus was caused by or aggravated by a service-connected disability, to include his IHD and hypertension. The examiner explained that diabetes is a risk factor and can be an aggravation factor for IHD and HTN, but not vice versa. IHD and hypertension do not cause diabetes and do not aggravate a diabetic condition. In a September 2019 VA examination, the examiner noted an official diagnosis of type II diabetes mellitus, with a date of diagnosis of 2007. See September 2019 C&P Exam. After a review of the claims file and examination of the Veteran, the examiner opined that it was less likely than not that the Veteran’s diabetes mellitus began during his military service. In support of the opinion, the examiner noted the Veteran’s discharge physical in May 1993 and post-service VA examination in December 1993 were both silent on the matter of diabetes mellitus. The examiner also noted the file contained numerous normal glucose levels during service. The examiner acknowledged that the Veteran’s private physician, Dr. R.G.H. wrote that the Veteran was diagnosed with type II diabetes mellitus since 1990 but noted that Dr. R.G.H. wrote in 2012 that he was the Veteran’s primary physical for over 15 years, around 1997 which is about four years after service. The examiner also opined that it was less likely that the Veteran’s diabetes mellitus was caused by or aggravated by a service-connected IHD and hypertension. In support of these opinions, the examiner highlighted medical literature that noted diabetes mellitus is a strong risk factor for cardiovascular disease but indicated this literature fails to draw a causal relationship in the other direction, CVD or hypertension on diabetes mellitus. The examiner also acknowledged that it could be argued that diabetes mellitus is worsened by coronary artery disease (CAD) through the indirect impact on exercise and weight. However, the examiner noted that the Veteran’s weight was significantly less than before, and he exercised every day to include cardio at the gym and golf twice a week. Here, the Board finds that March 2019 and September 2019 VA opinions are probative as they are based on a review of the claims file, consideration of the Veteran’s statements, and provides adequate rationales that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As detailed below, the probative evidence of record show that the Veteran’s type II diabetes mellitus had its onset years after separation from active service and is not otherwise related to his service-connected IHD and/or hypertension. The first treatment record noting treatment or medication possibly related to diabetes was in 2007, over a decade post service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed Cir. 2000) (the passage of many years between discharge from active service and medical documentation of a claimed disability is a factor that may weigh against a claim for service connection). The STRs from 1968 to 1993 have consistently noted the Veteran’s normal/negative glucose levels, reports of medical examinations consistently indicated normal endocrine system on clinical evaluation, the Veteran specifically denied having diabetes on dental health questionnaires, and reports of medical history showed the Veteran denied a history of or currently having sugar or albumin in his urine. A December 1993 general medical VA examination also noted the Veteran’s normal endocrine system. Private medical records between 2000 to 2005 did not note a diagnosis of or treatment for diabetes mellitus. Moreover, there is no competent, adequate probative medical opinion of record in support of the claim on a direct or secondary basis. The Veteran has offered his own opinion on etiology, stating he had issues of sugar problems in service and that he was diagnosed with diabetes during active service in 1991, by his doctor, Dr. R.G.H. See June 2018 Hearing Testimony. The Veteran also reported that he started taking medication for his diabetes while on active duty. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno, 6 Vet. App. 465. However, as a layperson, the Veteran is not competent to diagnose any symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of his type II diabetes mellitus, which such a determination requires medical expertise. Jandreau, 492 F.3d 1372 (Fed. Cir. 2007). Instead, the evidence of record is in direct contrast to his claim that his type II diabetes mellitus had its onset during active service. As noted above, the Veteran’s STRs do not show complaints, treatment or diagnosis for diabetes mellitus throughout his active service. In reference to the Veteran’s claim that he was diagnosed with diabetes by his private physician, Dr. R.G.H., in 1991 during active service, the Board notes that Dr. R.G.H. indicated that he had begun treating the Veteran sometime in 1997, four years after the Veteran separated from active service. Here, the aforementioned STRs notations regarding the Veteran’s denial of having diabetes on dental health questionnaire as late as April 1993, his denial of having sugar or albumin in his urine on his reports of medical history as late as May 1993, and Dr. R.G.H. notes that he began treating the Veteran four years after separation from active service are inconsistent with the Veteran’s claim that he has had diabetes since active service and that he had been diagnosed with diabetes by Dr. R.G.H. during active service. Statements made while seeking medical treatment are significant and given weight and credibility because they were made at a time when there was no incentive, financial or otherwise, to fabricate information for personal gain. Struck v. Brown, 9 Vet. App. 145 (1996); Rucker v. Brown, 10 Vet. App. 67 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth to receive proper care). Considering the Veteran’s inconsistent claims, the Board affords the Veteran’s statements little probative value. The Board acknowledges Dr. R.G.H.’s May 2012 and June 2018 letters in support of the claim, indicating the Veteran’s type II diabetes mellitus began during service in 1990. However, the Board notes that the opinions appear to be based on the Veteran’s unsubstantiated claims of onset date and were not based on a review of the record. The private physician did not address the normal glucose levels from 1990 to 2004, did not address the Veteran’s dental health questionnaires in February 1991, March 1992, and April 1993 in which the Veteran denied having diabetes, did not address the Veteran’s May 1993 retirement report of medical examination and December 1993 general medical VA examination that noted the Veteran’s normal endocrine system, did not address the private treatment records from his office between 2000 to 2005 that did not mention any treatment for or diagnosis of type II diabetes mellitus. The Board affords the May 2012 and June 2018 unsubstantiated conclusive opinions in support of the claim low probative value. Thus, these private opinions cannot be used as a basis for a grant of service connection for the type II diabetes mellitus. In sum, the Board affords more probative weight to the March 2019 and December 2019 VA examiners opinions in conjunction with the STRs and post-service treatment records than the Veteran and his private physician’s contentions regarding his type II diabetes mellitus. There is no opinion submitted in support of the claim on a secondary basis. The only opinions of record regarding entitlement to service connection on a secondary basis are the March 2019 and December 2019 VA opinions that have found that it is less likely than not that the Veteran’s type II diabetes mellitus is caused by or aggravated by his service-connected conditions, to include IHD and/or hypertension. As indicated above, these opinions are probative as they are based on a review of the claims file and provide adequate rationales that contain clear conclusions and supporting data. The Veteran has not submitted any argument or evidence in support of the secondary etiological basis. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for type II diabetes mellitus is not warranted on both a direct and secondary basis. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Entitlement to an initial rating in excess of 30 percent for IHD, to exclude the periods with 100 percent ratings from January 9, 2014 to May 1, 2014, and from September 13, 2019. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be 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. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to 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. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, it will assign the lower rating. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings,” regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran contends that he is entitled to an increased rating for the remaining periods he is assigned a 30 percent evaluation for his IHD (also known as coronary artery disease (CAD)). Specifically, the periods from November 6, 2012 to January 9, 2014 and from May 1, 2014 to September 13, 2019, the Veteran’s IHD is rated at 30 percent under Diagnostic Code 7005. See 38 C.F.R. § 4.104, Diagnostic Code 7005. Under provisions of 38 C.F.R. § 4.104, DC 7005, for arteriosclerotic heart disease (coronary artery disease), a 30 percent rating is assigned when there is 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 dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is assigned when there is 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. Id. 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. Id. Additional relevant information on rating cardiovascular disabilities in general comes from 38 C.F.R. § 4.100. Under section 4.100(a), whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram, echocardiogram, or x-ray) is present and whether or not there is a need for continuous medication must be ascertained in all cases. Moreover, section (b) provides that even if the requirement for a 10 percent (based on the need for continuous medication) or 30 percent (based on the presence of cardiac hypertrophy or dilatation) evaluation is met, METs testing is required in all cases except when there is a medical contraindication; when the left ventricular ejection fraction has been measured and is 50 percent or less; when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; when a 100 percent evaluation can be assigned on another basis. Moreover, section (c) provides that if left ventricular ejection fraction (LVEF) testing is not of record, evaluate based on the alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran’s cardiovascular disability. Factual Background Private treatment records from January 2013 to December 2013 and from May 2014 to September 2016 noted that on evaluation, the Veteran’s cardiovascular system was normal. His PMI was nondisplaced and normal in character, there was no heave or abnormal pulsation. He had normal sinus rhythm with normal S1 and S2 without audible click, murmur, or rub. See January 2017 Medical Treatment Record – Non-Government Facility (2). April 2013 private treatment records noted the Veteran’s cardiac studies looked good and that the Veteran had a myocardial infarction one year ago with two stents. See id. A January 2014 private treatment record noted the Veteran had been diagnosed with myocardial infarction and had heart stent surgery on January 9, 2014. See id. In a February 2014 VA examination, the examiner diagnosed coronary artery disease/ischemic heart disease. See March 2014 C&P Exam. The examiner noted the Veteran was a high school graduate with two years of college but did not receive a degree. After his retirement from the Navy in 1993, the Veteran worked as a State Peace Officer/Correctional Officer for 17 years and retired in 2011. The examiner subsequently suffered a myocardial infarction in March 2012 with status post two stents placed and another myocardial infarction status post two more stents placed in January 2014. The examiner noted the Veteran did not have a history of coronary bypass surgery, heart transplant, implanted cardiac pacemaker, implanted automatic implantable cardioverter defibrillator (AICD), or congestive heart failure. The examiner noted an August 2013 interview based METs of greater than 5 METs, but less than 7 METs, which resulted in dyspnea and fatigue. The examiner noted the Veteran’s IHD impacted his ability to work. The examiner noted the Veteran’s reports that because of his IHD/CAD with status post myocardial infarction with stents, that no doctor of his would release him or allow him to go back to work. The Veteran stated that because of his CAD/IHD that no one would hire him. The examiner also noted the Veteran’s statement that he played golf five days a week, three days with nine hole round with him walking the whole way pulling his golf clubs behind him on wheels and two days (Saturday and Sunday) with 18 hole rounds riding golf cart. The Veteran also stated he was able to semi jog on the cardiac rehab treadmill, walking up the stair master machine at cardiac rehab, and pushing his lawnmower to mow his lawn. Accordingly, based on the above the examiner found his METs could be easily above 5, and to 7. A July 2015 private treatment record noted a chest x-ray revealed stable cardiomediastinal silhouette with mild cardiomegaly. See August 2019 Medical Treatment Record – Non-Government Facility. The report noted an impression of cardiomegaly with pulmonary vascular congestion. A January 2017 private treatment record noted a nuclear stress test performed in March 2013 showed left ventricular ejection fraction was mildly reduced. See June 2017 Medical Treatment Record – Non-Government Facility. The record noted the Veteran presented in a quite stable fashion with no evidence of chest pain. A February 2018 private treatment record noted a February 2017 echocardiogram showed a normal left ventricular ejection fraction of 63 percent, mild concentric left ventricular hypertrophy with septal and apical akinesis, mildly enlarge left atrium and mild mitral regurgitation. See July 2018 Medical Treatment Record – Non-Government Facility. An April 2018 private treatment record described the Veteran as a vigorously active 70 year old male who has had no chest pain or shortness of breath. The record noted the Veteran’s leg swelling but indicated there were no signs of heart failure per se. The record noted an impression of pedal edema consistent with chronic mild heart failure and fluid overload. The record noted the Veteran played golf four times a week where he walked the course and three to four hours at a time doing gymnasium work with cardiovascular and weight training. See August 2019 Medical Treatment Record – Non-Government Facility. A July 2018 private treatment record noted the Veteran as a vigorous 71 year old man who goes to the gym almost every day, went golfing most days despite the heat without any cardiorespiratory complaints. See id. The reviewing provider noted the Veteran had a couple days of postprandial tightness in his upper esophagus radiating towards his neck that seemed reminiscent of a remote myocardial infarction. However, the provider noted that since then the Veteran has had extensive re-evaluations and echocardiogram documenting excellent cardiac function in addition to his daily vigorous activity. The provider noted that since he saw him in April with similar symptoms, he was seen for some lower extremity edema without heart failure and had an interval echocardiogram in early July which was similarly reassuring despite his underlying cardiac risk factors. The provider noted chest x-ray impression of mild cardiomegaly without congestive heart failure or infiltrate. An August 2018 private treatment record noted echocardiograms revealed LVEF of 55 percent and 60 percent. See id. A September 2018 private treatment record noted the Veteran had presented with persistent cough and shortness of breath that was worse when he laid supine. The record noted an impression of bronchitis. The record noted the Veteran had been exercising every day and had not had any exertional shortness of breath or exertional chest pain. The record noted a normal EKG that revealed no acute cardiac ischemia and no arrhythmia. See id. A February 2019 private treatment record noted the Veteran had been riding the recumbent bike for 35 minutes, was doing seated hip abduction exercise with 30 pound weights, and was doing leg press exercise. See id. A March 2019 VA examination noted the Veteran was in cardiac rehab and went to the gym three times a week using the stationary bike for 35 minutes and walked nine holes of golf twice a week without chest pain or shortness of breath. See March 2019 C&P Exam. The examiner noted continuous medication was required for control of the Veteran’s heart condition. The examiner noted the Veteran did not have a history of congestive heart failure, cardiac arrhythmia, heart valve condition, infectious heart conditions, and pericardial adhesions. The examiner noted there was no evidence of cardiac hypertrophy and no evidence of cardiac dilatation. The examiner noted a March 2019 interview based METs of greater than 7 METs but not greater than 10 METs. The examiner noted the Veteran’s heart condition did not impact his ability to work. Analysis Based on the foregoing, the Board finds that an initial disability rating in excess of 30 percent for IHD is not warranted for the periods of November 6, 2012 to January 9, 2014, and from May 1, 2014 to September 13, 2019. The evidence of record, to include private treatment records and VA examinations, reflects that for the aforementioned periods on appeal, the Veteran’s IHD was manifested, at worst, by dyspnea and fatigue, METs greater than five, and at worst, LVEF of 55 percent. As indicated above, in order for the Veteran to qualify for the next higher rating of 60 percent, his symptoms must show more than one episode of acute congestive heart failure in the past year, or; workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of 30 to 50 percent. The Board acknowledges the April 2018 private treatment record that mentioned the possibility of chronic mild heart failure. However, as clarified in a July 2018 private treatment record, subsequent extensive re-evaluations and echocardiograms clarified that the Veteran did not have heart failure. As the medical evidence establishes an LVEF of 55 percent and a workload of greater than five METs, and no evidence of congestive heart failure in the respective periods on appeal, the criteria for a higher rating are not met. Therefore, a rating in excess of 30 percent for IHD is not warranted. The preponderance of the evidence is against the assignment of an initial disability rating in excess of 30 percent for the Veteran’s IHD under Diagnostic Code 7005 for the periods of November 6, 2012 to January 9, 2014, and from May 1, 2014 to September 13, 2019. The claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to TDIU. The Veteran contends he is entitled to a TDIU due to his service-connected disabilities. At the outset, the Board notes that the Veteran was awarded SMC pursuant to 38 U.S.C. § 1114(s) from February 19, 2014 to May 1, 2014, based on the 100 percent rating for IHD and additional service-connected disabilities of sleep apnea, hypertension, status post anal fistulotomy with hemorrhoids and anal fistula, independently ratable at 60 percent or more. The Veteran was also awarded SMC pursuant to 38 U.S.C. § 1114(s) from September 13, 2019, based on the 100 percent rating for IHD and additional service-connected disabilities of left knee degenerative joint disease (DJD), right knee DJD, tinnitus, sleep apnea, hypertension, status post anal fistulotomy with hemorrhoids and anal fistula, independently ratable at 60 percent or more. As the Veteran is in receipt of 100 percent ratings for IHD and in receipt of SMC, from February 19, 2014 to May 1, 2014, and from September 13, 2019, the Veteran’s appeal for TDIU, has been rendered moot during these periods. However, as the Veteran is not in receipt of a 100 percent rating for his service-connected disabilities for the remaining periods of November 6, 2012 to January 9, 2014, and from May 1, 2014 to September 2019, these periods remain on appeal for TDIU consideration. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). Service connection is in effect for the Veteran’s hypertension, rated as 10 percent disabling, effective September, 1, 1993; status post anal fistulotomy with hemorrhoids and anal fistula, rated as 10 percent disabling, effective September, 1, 1993; erectile dysfunction, rated as 0 percent, effective January 10, 2012; sinus dysfunction, rated as 0 percent, effective January 10, 2012; IHD, rated as 30 percent disabling, effective November 6, 2012 to January 9, 2013, and May 1, 2014 to September 13, 2019; sleep apnea, rated as 50 percent from February 19, 2014; right knee DJD, rated as 10 percent, effective December 15, 2016; left knee DJD, rated as 10 percent, effective December 15, 2016; tinnitus, rated as 10 percent, effective December 15, 2016; and left ear hearing loss, rated as 0 percent disabling from December 15, 2016. For the initial period for consideration, from November 6, 2012 to January 9, 2014, the Veteran’s service-connected disabilities have not met the schedular criteria since they only have a combined rating of 40 percent. Nevertheless, even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, individual unemployability benefits may be granted on an extraschedular basis in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). However, from May 1, 2014 to September 13, 2019, his combined schedular rating is at least 70 percent or more, with at least one service-connected disability (sleep apnea) rated at 40 percent or more, and thus his service-connected disabilities satisfy the schedular criteria for a TDIU set forth in 38 C.F.R. § 4.16(a) for this latter period on appeal. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran had been capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Pursuant to 38 C.F.R. § 4.16(b), as noted above, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such a case shall be submitted to the Director of Compensation Services for extraschedular consideration. Here, the Board finds that remand for referral for the period from November 6, 2012 to January 9, 2014 is not warranted, as TDIU is not warranted throughout the appeal periods considered. Factual Background May 2012 VA examinations noted the Veteran’s IHD, hypertension, and sinus dysfunction did not impact his ability to work. See May 2012 VA Examination (2). An October 2012 private treatment record noted the Veteran exercised a minimum of five days per week and used his CPAP device nightly. He denied chest pain or significant shortness of breath. See June 2014 Medical Treatment Record – Non-Government Facility. In a February 2014 VA examination, the examiner noted the Veteran was a high school graduate with two years of college but did not receive a degree. See March 2014 C&P Exam. The examiner noted that he was enlisted in the Navy from 1968 to 1993 with his highest rank of E-7, his MOS was a LIC/printer personnel. After his retirement from the Navy in 1993, the Veteran worked as a State Peace Officer/Correctional Officer for 17 years and retired in 2011. The examiner noted the Veteran’s hypertension and IHD impacted his ability to work. The examiner did not specifically indicate the Veteran was unable to work but simply referenced the Veteran’s reports that his hypertension caused him to have his two myocardial infarctions that resulted in his inability to be able to work currently. The examiner then highlighted the Veteran’s reports that he played golf five days a week, three of those days with nine hole rounds that he walked the whole way pulling his golf clubs behind him on wheels. Further, the Veteran reported that at cardiac rehab, he was able to semi jog on the treadmill, walk up the stair master machine, and push his lawnmower to mow his lawn, showing the Veteran’s METs could easily be above 5 METs and to 7 METs. A March 2015 private treatment record noted the Veteran’s obstructive sleep apnea and that he used a CPAP machine and that he benefited from the use within the last 12 months. See November 2017 Medical Treatment Record – Non-Government Facility. A June 2016 private treatment record noted the Veteran on physical examination appeared well-developed, well-nourished, and in no cardiorespiratory distress. He was alert and oriented to time, place, and person. See id. The examiner noted the Veteran ambulated to the examination room without assistance. A January 2017 private treatment record noted the Veteran’s history of severe obstructive sleep apnea for which he had been on CPAP for a number of years. See June 2017 Medical Treatment Record – Non-Government Facility. The Veteran reported that he felt much better after using his CPAP device. In a February 2017 VA examination, the examiner noted the Veteran’s hearing loss and tinnitus impacted his ordinary conditions of daily life, including his ability to work. See February 2017 C&P Exam. The examiner referenced the Veteran’s reports that his wife had to repeat frequently, that people complained he played the TV too loud, that he had problems understanding in restaurants, and that his tinnitus was distracting while reading. In a December 2017 sleep apnea disability benefits questionnaire (DBQ), the examiner noted the Veteran’s reports of snoring, observed breathing pauses during sleep, poor sleep quality, and daytime fatigue. See January 2018 VA Examination. The examiner noted the Veteran’s sleep apnea impacted his ability to work. The examiner noted that sleep apnea causes poor sleep, daytime sleepiness, slowed reaction time, memory impairment, and impaired vigilance. The examiner noted that untreated sleep apnea causes or exacerbates chronic health problems. The examiner noted the Veteran must use CPAP whenever he sleeps to alleviate sleep apnea, improve sleep quality, and maintain normal daytime functioning. An April 2018 private treatment record noted the Veteran played golf four times a week through which he walks the course and exercised three to four hours at a time doing gymnasium work with cardiovascular and weight training. See August 2019 Medical Treatment Record – Non-Government Facility. The record noted the Veteran has had no chest pain, shortness of breath, or orthopnea. The record also noted the Veteran used a CPAP and has had no nocturnal dyspnea. A July 2018 private treatment record noted the Veteran goes to the gym every day and golfs most days as well, despite the heat, without any cardiorespiratory complaints. See id. A September 2018 private treatment record noted the Veteran was a retired policeman since his myocardial infarction in 2012. See id. He stated that he actively exercised every day and had not had any exertional shortness of breath or exertional chest pain. A January 2019 letter from the Veteran’s treating physician, Dr. R.G.H., noted the Veteran has had new medical diagnoses within the past few months that inhibit him from continuing to work. The provider opined that the Veteran would not be able to perform his work duties to the best of his abilities. See February 2019 Medical Treatment Record – Non-Government Facility. A February 2019 private treatment record noted that for exercise, the Veteran rides a recumbent bike for 35 minutes, does seated hip exercises with 30 pound weights, and does leg press exercise. See id. In a March 2019 VA examination, the examiner noted the Veteran’s IHD did not impact his ability to work. See March 2019 C&P Exam. Analysis The Board notes that the evidence of record provides conflicting information as to when the Veteran stopped working. In a June 2018 Board hearing, the Veteran testified that he lost his job in 2012 due to his heart attack at the time and indicated that he has not tried to seek employment since 2012 as he is disabled. See June 2018 Hearing Testimony. In a January 2019 TDIU application, the Veteran reported that he worked as a correctional officer from 1994 to 2013, that he last worked full time in March 2013, and that his ischemic heart disease prevented him from substantially gainful occupation as of March 2013. See January 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. However, a March 2019 employment information form noted the Veteran worked from February 1995 to December 2011 as a correctional officer and had retired from the job in 2011. See March 2019 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. Nevertheless, even considering the conflicting dates of employment, the Board notes that the evidence of record as a whole does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities alone for the remaining periods considered on appeal. Although examinations of record had indicated his service-connected disabilities have impacted his work, none of the records have indicated an inability to maintain employment or that the disabilities prevented the Veteran from all substantially gainful employment. The Board also notes that there is no adequate contrary evidence of record that supports the Veteran’s TDIU claim. Although the Veteran’s treating physician noted in January 2019 that the Veteran had new medical diagnoses within the past few months that inhibited him from continuing to work, there was no specificity as to what these “new medical diagnoses” were and the provider did not specify that it was the service-connected disabilities alone that rendered the Veteran unable to maintain employment or prevented him from all substantially gainful employment. Instead, the examiner opined that the Veteran would not be able to perform his work duties to the best of his abilities, not that the Veteran was unable to perform any work duties. As such, the Board assigns this opinion low probative value. The Board also acknowledges the Veteran’s reports that his service-connected IHD prevents him from working and that he was disabled and could not stand up for too long, thus suggesting physical limitations. See June 2018 Hearing Testimony. However, private treatment records and VA examinations have consistently noted the Veteran’s ability to conduct vigorous exercise several times a week, to include golfing at least two days a week that included walking and pulling his golf clubs behind him on wheels on a nine hole course, sometimes in the heat, recumbent biking for 35 minutes, and performing leg and hip exercises without shortness of breath or chest pain. The Board also acknowledges the January 2018 sleep apnea DBQ in which the examiner noted sleep apnea generally causes poor sleep, daytime sleepiness, slowed reaction time, memory impairment, and impaired vigilance and that untreated sleep apnea causes or exacerbates chronic health problems. The examiner noted that the Veteran must use a CPAP whenever he sleeps to alleviate sleep apnea, improve sleep quality, and maintain normal daytime functioning. However, the Board highlights that the examiner did not specify that the Veteran was unable to work due to his sleep apnea, just that it impacted his ability to work. Moreover, the examiner did not indicate that the Veteran experienced all of the aforementioned symptoms, only specifically noting the Veteran experienced poor sleep quality, snoring, observed breathing pauses during sleep, and daytime fatigue at the time of examination. Additionally, private treatment records have noted the Veteran’s beneficial use of CPAP that has helped him feel much better. (Continued on the next page)   The Board also acknowledges the February 2017 VA examination that noted the Veteran’s hearing loss and tinnitus impacted his ability to work. However, the Board reiterates that the examiner did not specify that the Veteran was unable to work due to his left ear hearing loss and tinnitus. In any event, although the Veteran’s service-connected left ear hearing loss and tinnitus may prevent him from working in an environment with excessive noise, they have not been shown to have prevented him from working in less noisy environments. Notwithstanding, the ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). After a review of the evidence of record, the Board finds that the claim for entitlement to a TDIU is not warranted when considered in association with the Veteran’s educational attainment and occupational background. In sum, the most probative evidence of record does not support his claim that his service-connected disabilities alone are sufficient to produce unemployability. Although they produce impairment to some degree, the evidence does not reflect gainful employment is precluded solely due to such service-connected disabilities. Thus, the preponderance of the evidence is against the Veteran’s claim for a TDIU. The claim for a TDIU is denied for the remaining periods considered on appeal, from November 6, 2012 to January 9, 2014, and from May 1, 2014 to September 13, 2019, and as such, referral for extraschedular consideration of unemployability for the period prior to January 9, 2014, is also not warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.