Citation Nr: 21003177 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 12-24 096 DATE: January 19, 2021 ORDER Entitlement to an initial disability rating higher than 30 percent since July 11, 2011 for coronary artery disease is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is remanded. FINDING OF FACT Metabolic equivalent (MET) testing shows the Veteran develops angina and fatigue with a workload of greater than 5 METs. MET testing shows the Veteran did not develop these symptoms at a workload of 5 METs or less, and there was not evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent or more than one episode of active congestive heart failure in the past year. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent since July 11, 2011 for arteriosclerotic heart disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1964 to May 1966. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by a VA Regional Office (RO), which granted service connection for coronary artery disease with an initial disability rating of 10 percent rating prior to July 11, 2011, and 30 percent thereafter. In June 2013 and August 2013 correspondence, the Veteran requested a Board Hearing. However, he has withdrawn that request. See October 2014 Veteran’s Statement. In a September 2016 decision, the Board granted a higher initial rating of 30 percent prior to July 11, 2011, for the service-connected coronary artery disease; and remanded the issues of an initial rating for coronary artery disease higher than 30 percent since July 11, 2011, and entitlement to TDIU, for further development. In July 2020, the Board remanded the issues for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an initial disability rating higher than 30 percent since July 11, 2011, for coronary artery disease is denied. The Veteran seeks a rating in excess of 30 percent for his service-connected coronary artery disease. For reasons outlined below, the Board finds an increased rating is not warranted. Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Under DC 7005, a 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. One metabolic equivalent (MET) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Id. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase “30 to 50 percent” means 30 percent through 50 percent. Id. at 380. The Veteran underwent VA examination in July 2011 in relation to his heart disability. The VA examiner noted the Veteran’s continuous medication for his disability. The Veteran did not have congestive heart failure. The VA examiner did not provide an exercise stress test. The examiner performed an interview based METs test which showed that the Veteran experienced angina and fatigue with a workload of greater than 5 METs. The VA examiner noted the Veteran can lift 50-100 pounds, walk a half mile, climb one flight of stairs, and stand to wash dishes or the car. The examiner noted that a September 2009 echocardiogram showed LVEF of 64 percent. In August 2011 and August 2012 statements, the Veteran asserted that he believes the July 2011 VA examiner’s statements regarding his ability to lift 50-100 pounds, walk a half mile, climb one flight of stairs, and stand to wash dishes or the car are misleading as he is not certain he could perform these activities and that he would have chest discomfort. A May 2012 VA medical opinion provider noted that exercise testing is not required as part of the Veteran’s treatment plan and that the July 2011 interview-based test showed the Veteran experienced angina and fatigue with a workload of greater than 5 METs. In April 2013, the May 2012 VA opinion provider explained that a nuclear stress test rather than an exercise stress test was performed due to the Veteran’s history of coronary artery disease and his recent chest pain with activity. The report explains that the nuclear stress test was normal with a LVEF of 68 percent and no evidence of ischemia. The Veteran underwent additional VA examination in November 2017. The VA examiner reviewed the file and examined the Veteran. The examiner noted the Veteran’s report of chest pain with exertion. The Veteran reported chest pain and fatigue with walking a city block. The examiner noted that continuous medication is required for control of the Veteran’s heart condition and that the Veteran has not had congestive heart failure. The examiner noted that an interview based METs test indicated that the Veteran reported experiencing fatigue with a workload of 1 to 3 METs. The examiner noted that an October 2017 echocardiogram showed LVEF of 74 percent and explained that the LVEF percent was a more accurate indicator of cardiac function than the Veteran’s interview based METs score. The examiner indicated that the Veteran has chest pain and fatigue limiting his ability to perform strenuous physical labor. As the November 2017 VA examiner did not provide a reason for the lack of METs exercise testing, the Board remanded the matter in July 2020 to obtain another examination. The Veteran underwent VA contract examination in October 2020. The VA contract examiner reviewed the records and examined the Veteran. The examiner noted that the Veteran reported current symptoms of chest pain. The examiner noted that continuous medication was required for control of the Veteran’s heart condition and that the Veteran had not experienced congestive heart failure. The examiner noted that the Veteran underwent an echocardiogram in September 2020 which showed LVEF of 60 to 65 percent. The examiner explained that an exercise stress test was not performed because exercise stress testing is not required as part of the Veteran’s current treatment plan and the test is not without significant risk. The examiner performed an interview based METs test which showed that the Veteran experienced angina with a workload of greater than 5 METs. The Veteran’s VA treatment records show complaints of chest tightness or discomfort with exertion. In relation to a September 2012 VA cataract surgery, the Veteran denied chest pain or dyspnea on exertion with 4 METs. At that time, the Veteran reported he plays golf and can walk up two flights of stairs without chest pain or shortness of breath. In August 2018 VA treatment, the Veteran reported that he is able to go 2 to 3 flights of stairs before feeling chest discomfort and that this has been stable for years. The Board notes that the Veteran’s representative argues that the 2011, 2012, and 2020 examinations providing an assessment of greater than 5 METs for the Veteran’s angina are inadequate. As to the 2011 and 2012 examinations, the Veteran’s representative argued that the Veteran can sustain no more than 3 METs. See June 2020 Informal Hearing Presentation. The Veteran’s representative argued that the activities of washing dishes and washing a car are lower METs activities and therefore do not justify the 2011 and 2012 METs assessments. However, the VA examiners provided METs assessments based on the complete interview of the Veteran (his responses to a number of activities, including lifting, walking, and climbing, rather than one activity) as well as their own medical expertise. In a January 2021 Informal Hearing Presentation, the Veteran’s representative argued that the October 2020 VA contract examination is inadequate and that a remand is warranted to comply with the Board’s July 2020 remand directives. However, the Board finds substantial compliance with the July 2020 remand. In accordance with the remand directives, the examiner reviewed the claims file and examined the Veteran, noted the Veteran’s current symptoms, assessed and reported the Veteran’s current METs and LVEF, and explained why exercise stress testing was not done. The representative suggests the examiner should have provided additional explanation for why exercise stress testing was not performed. However, the examiner noted that an exercise stress test was not performed because such testing is not required as part of the Veteran’s current treatment plan and is not without significant risk. The examiner’s report of a medical contraindication for testing constitutes an exception to METs testing under 38 C.F.R. § 4.100(b) and is an adequate explanation for the lack of exercise stress testing. The representative also suggests the examiner should have provided an explanation for choosing a METs level of greater than 5 (which includes heavy yard work) rather than greater than 3 (which includes light yard work), in light of the examiner’s opinion that the Veteran’s heart disability would interfere with moderate work type activity such as doing yard work. The activities listed for each METs level are merely examples of the types of activity consistent with the METs level, and the METs level assigned to the Veteran includes walking one flight of stairs, mowing the lawn with a push mower, and golfing without a cart. The examiner provided the October 2020 METs assessment based on medical expertise, review of the file, and interview of the Veteran; the Board finds it adequate. The representative also challenged the LVEF percentage noted by the October 2020 VA contract examiner because the September 2020 imaging report noted that it was a “[t]echnically difficult study with suboptimal views.” However, the September 2020 cardiologist still provided an LVEF estimate. The cardiologist would have indicated if the imaging was not adequate to provide an LVEF estimate. The representative also notes that the imaging report diagnosis reflects atherosclerotic heart disease of native coronary artery without angina pectoris. The representative argues that such diagnosis does not acknowledge the Veteran’s chest pain. However, regardless of the diagnosis used, the October 2020 VA examiner described the Veteran’s symptomatology (including chest pain with exertion) and functional impairment from his service-connected coronary artery disease. The Board finds that the evidence in the Veteran’s claims file, including the October 2020 VA contract examination, is adequate to rate the Veteran’s disability under the applicable rating criteria. Considering all relevant evidence of record, the Board finds that the Veteran experiences angina and fatigue with a workload of greater than 5 METs. The Veteran is competent to report his readily observable symptoms, such as pain, and the Board has considered the Veteran’s reports. The July 2011 VA examiner and the October 2020 VA contract examiner both estimated that the Veteran experiences angina with a workload of greater than 5 METs based on the Veteran’s reports and their own medical expertise. The Veteran’s reports from his treatment records are consistent with such an assessment. Although the November 2017 VA examiner indicated that the Veteran reported experiencing fatigue with a workload of 1 to 3 METs, the VA examiner explained that the LVEF percent was a more accurate indicator of the Veteran’s cardiac function than the METs assessment. Accordingly, the Board concludes that the Veteran’s arteriosclerotic heart disease results in angina with a workload of greater than 5 METs and less than 7 METs throughout the relevant time period. These findings correspond to the criteria for a 30 percent rating under DC 7005. A higher 60 percent rating is not warranted unless 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. Here, the Veteran did not experience congestive heart failure during the relevant time period. In addition, as explained above, the Veteran’s disability results in angina with a workload of greater than 5 METs. The record also does not show LVEF of 50 percent or less. During the relevant period, the Veteran’s LVEF has been estimated at 60-65 percent, 68 percent, and 74 percent. Thus, the Board concludes that the Veteran’s arteriosclerotic heart disease did not meet the criteria corresponding to a higher 60 percent rating. REASONS FOR REMAND 1. Entitlement to a TDIU on an extraschedular basis is remanded. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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. § 4.16(a). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. As noted in this decision, the Veteran is only rated 30 percent rating for coronary artery disease, effective June 30, 2004. In addition, he is also service connected for posttraumatic stress disorder (PTSD), rated 30 percent disabling, effective June 22, 2009, and diabetes, rated 10 percent disabling, from June 4, 2016. He also has a noncompensable dental disability. His combined evaluation was 30 percent, effective June 30, 2004; 50 percent, effective June 22, 2009; 60 percent, effective June 4, 2016. Thus, at no point has the Veteran met the initial eligibility requirements to receive TDIU benefits. 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a TDIU may still be assigned but on a different basis. 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. § 38 C.F.R. §4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director, Compensation Service, for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board’s sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. Here, in light of the evidence suggesting the possibility that the Veteran’s service-connected disabilities could be impacting his ability to maintain substantial, the Board finds the threshold for referral has been met. But see Ray, 31 Vet. App. 58 (emphasizing that referral for extraschedular consideration to the Director is merely a quasi-factual finding and not binding on the Board). The Board notes the Veteran’s contentions that he is unemployable due to his service-connected disabilities, including his coronary artery disease, posttraumatic stress disorder (PTSD), and diabetes. He reported that he last worked full-time in February 2004 and that he became too disabled to work in October 2004. He has a high school education. His full-time employment history includes work as a driver and as a production supervisor. He reported that he attempted part-time work in 2005 as a service technician for a construction company but was not able to continue the employment beyond a few months due to his health problems. He reported that the job required that he climb many flights of stairs, engage in heavy lifting, and work in confined spaces, which caused shortness of breath. As to the Veteran’s coronary artery disease disability, the October 2020 VA contract examiner opined that the Veteran’s disability would impact his ability to work because the Veteran gets chest pain with moderate work type activity, such as doing yard work. As to the Veteran’s PTSD disability, VA examiners and VA treatment records note the Veteran’s reports of problems with focus and concentration, problems sleeping, irritability, anger, hypervigilance, difficulty with relationships, and depressed mood. See, e.g., April 2010 and June 2011 VA Examination Reports; June 2016 VA Treatment Record. In light of the combination of the Veteran’s physical and mental functional limitations from his service-connected disabilities, and his educational and employment background, resolving doubt in favor of the Veteran, the Board finds the lay and medical evidence as a whole suggests that the Veteran may be unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Accordingly, the Board finds that a remand of the Veteran’s claim of entitlement to TDIU is warranted to refer the claim to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16(b); see also Floyd v. Brown, 9 Vet. App. 88 (1996); Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board notes that on his October 2017 TDIU application the Veteran reported $32,000 in earned income for the prior year. However, the Veteran did not report work within the prior year and indicated that he was retired. The record shows the Veteran receives Social Security Administration (SSA) benefits. As it is unclear whether the Veteran’s reported earned income is due solely to SSA and other retirement benefits, while this matter is on remand, the Veteran should be offered an opportunity to submit a new TDIU application with complete information, including any part-time work during the appeal period. The matters are REMANDED for the following action: 1. Provide a new VA Form 21-8940 to the Veteran and request that he supply the requisite information. (Continued on the next page)   2. Then, refer the Veteran’s claim of entitlement to TDIU to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. A copy of the Director’s decision must be associated with the claims file. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.