Citation Nr: 21003824 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-32 461 DATE: January 22, 2021 ORDER A rating in excess of 30 percent for ischemic heart disease, to include coronary artery disease, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to August 26, 2016, is denied. FINDINGS OF FACT 1. The Veteran’s ischemic heart disease, to include coronary artery disease has not been manifested by congestive heart failure, a workload of less than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 50 percent or less. 2. Prior to August 26, 2016, the Veteran’s service-connected disabilities did not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria to establish a rating in excess of 30 percent for ischemic heart disease, to include coronary artery disease, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.104, Diagnostic Code 7005. 2. The criteria for entitlement to a TDIU prior to August 26, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1968 to April 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO). Most recently, in July 2020, the Board remanded these matters for further evidentiary development. In particular, the Board remanded these matters for the Veteran to be scheduled for an examination by an appropriate clinician to determine the current severity of his service-connected heart disability. In September 2020, the Veteran was informed that the scheduling VA examination clinic did not provide clinical examinations secondary to COVID-19 precautions. See September 2020 Report of VA Examination. During discussion with the VA clinic, the Veteran declined having a VA Video Connect (VVC) appointment or a telephone appointment. Id. Therefore, the examiner completed the report of VA examination report as an e-file review without physical examination or video or telephone interview. Id. Accordingly, the Board finds the duty to assist requirements have been fulfilled. In addition, the Veteran as notified in July 2020 written correspondence of the potentially outstanding private treatment records and provided with VA Form 21-4142 to identify and authorize for release any outstanding private treatment records. In addition, the Veteran was directed to complete A Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, if he believed TDIU was warranted. The Veteran was again notified of such in the September 2020 supplemental statement of the case (SSOC). To date the Veteran has not identified and authorized for release these potentially outstanding private treatment records. Given the AOJ actions and the Veteran’s choice not to submit to the VA examination, as well as to identify and authorize for release any outstanding private treatment records, the Board finds that VA has no remaining duty with regard to a medical examination and opinion in conjunction with this claim, as well as obtaining any outstanding private treatment records. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). As such, the Board has determined that there has been substantial compliance with such development sought during the prior July 2020 Board Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Heart Disability Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282(1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). See also Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran asserts that the record supports a rating in excess of 30 percent for his ischemic heart disease. The Veteran’s ischemic heart disease is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7005, which provides that a 30 percent evaluation is assigned for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted when there is more than one episode of congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating contemplates documented arteriosclerotic heart disease resulting in 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. During a March 2015 VA examination, the examiner noted that continuous medication was required for control of the Veteran’s heart condition. The Veteran had not had a myocardial infarction and had not had congestive heart failure. The examiner noted that the Veteran experiences intermittent atrial fibrillation. When asked if the Veteran’s heart condition impacted his ability to work. The examiner wrote, Yes, but only when in a [fibrillation] which is now infrequent. From his IHD[,] [he] states [he] gets chest pains and shortness of [breath] if [he] exerts himself. [He] does exercise 30 minutes a day. [He] could do sedentary work but physically demanding work would be more difficult. From a medical standpoint there would be no contraindication to working in a loosely supervised situation requiring little interaction with the public. The examiner further remarked, METs was not addressed as the [Veteran] has other conditions affecting exercise tolerance. Subjective and/or METs (Metabolic Equivalent of Task) measured on stress testing is not [a] reliable indicator of [Veteran’s] cardiac status. The metabolic stress test measures dyspnea or fatigue (functional capacity) but is not cardiac specific as lung disease, body habitus (adiposity), poor fitness and aging affects the measurement. Echocardiogram is a more reliable measure of cardiac function. An echocardiogram has been ordered and EF, LVH and cardiac dilatation results will be available in CPRS. A March 2015 VA echocardiogram reflects mild cardiac dilatation and mild hypertrophy, with a left ventricular ejection fraction of 56 percent. A July 2019 private examination includes a finding of METs level between three and five attributable to the Veteran’s coronary artery disease as well as asthma and obesity. The private opinion noted that the Veteran was scheduled for a stress test in August 2019, which was weeks after this examination. The opinion noted that the Veteran experiences dyspnea and fatigue and METS level of >3-5. There is not indication that this was based on an interview based METS test or why such was warranted. Rather the opinion notes the Veteran was scheduled for a future exercise stress test. However, as noted by the Board in its July 2020 remand, this finding does not shed light on the Veteran’s CAD level of severity alone and failed to provide clear findings accompanied by sufficient detail and rationale. As such the Board finds that this private opinion is entitled to less probative weight in evaluating the current severity of the Veteran’s coronary artery disease and his ongoing symptomology. During a January 2020 VA examination, the Veteran reported symptoms of angina pectoris and dizziness. It was noted that continuous medication was required for the Veteran’s heart condition. He had not had congestive heart failure, nor has he had any episodes of congestive heart failure. He had a cardiac arrhythmia, namely constant atrial fibrillation. Diagnostic testing revealed evidence of cardiac hypertrophy and cardiac dilatation. A February 2020 EKG revealed concentric left ventricular hypertrophy. The Veteran had an LVEF ejection fraction of 55 percent with abnormal wall thickness resulting in severely dilated left atrium. The examiner indicated that an exercise stress test was not performed, explaining “exercise stress testing is not required as part of the Veteran’s current treatment plan and this test is not without significant risk.” An interview-based METs (metabolic equivalent) test from January 2019 was noted to reflect a METs level greater than three but less than five; this was the lowest activity level at which the Veteran reported dyspnea and dizziness. The METs level was found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph). The examiner indicated that he was unable to determine METs level due solely to the cardiac condition without resorting to speculation, because the Veteran also has chronic obstructive pulmonary disease. When asked if the Veteran’s heart conditions impact his ability to work, the examiner stated, Angina of effort associated with exertional dyspnea and atrial fibrillation reduces functional capacity and this will significantly impact ability to work negatively. Pursuant to the July 2020 Board remand, the RO was to schedule the Veteran for an examination to determine the current severity of his service-connected CAD. The examiner was asked to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner was also asked to identify any symptoms and functional impairments due to CAD alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. The examiner was to specifically assess the Veteran’s workload in METs and provide an ejection fraction reading. The Board directed that if a new stress test is contraindicated, and/or interview-based MET data is provided in lieu of a stress test, please explain why. The Board additionally directed the examiner to indicate whether the Veteran’s heart disease results, or has resulted, in chronic congestive heart failure. A VA examination was scheduled in September 2020; however, the Veteran did not undergo examination. Instead, the VA examination report noted, This C&P clinic does not provide clinical [examinations] secondary to COVID 19 precautions. Upon discussion with the Veteran he did not wish for a VVC appointment, nor did he wish to have a telephone appointment. The Veteran declined a VVC or telephone appointment. Therefore[,] this report is provided as an e-file review without physical [examination] or video or telephone interview. In response to the July 2020 Board remand directives, upon review of the Veteran’s medical treatment records and current medical literature, the examiner stated, Diagnosis. CAD [status post] stent placements, per medical record review. Atrial fibrillation, stable on medication, per medical record review. METS score: > 5-7 is based solely on cardiac functioning, as based on the medical record review and normal left ventricular ejection fraction. Although an actual METs score may be lower due to other comorbidities including morbid obesity, restrictive lung disorder, poor physical conditioning, this METS of > 5-7 is provided as an indication of strictly heart function, normal as reflected by LVEF per echocardiogram and left heart catheterization. In 2019 the cardiologist provided a diagnosis for CAD of native coronary artery of native heart without angina pectoris. He documented DOE, no orthopnea, no palpitations or syncope and that chest pain was improved after a previous PCI, although at that time the [V]eteran noted some chest pain at extreme exertion, dizziness had resolved. In the 2020 note the Veteran subjectively notes to cardiology that he currently has fatigue after a recent (subjective) stent placed in 2020. He noted that he was getting back to his ADL and walking (as previously noted he walked greater than one mile) without chest pain or shortness of breath. Note: Although it is noted that the subjectively noted to cardiology (in the 2020 notation) that a stent was placed and he currently had fatigue, the notes from the hospital and/or private cardiologist pertaining to the 2020 stent are not available for review. Thus[,] this report is provided strictly on the notes that are provided for review. Occupational functioning and activities of daily living for this Veteran, based only on his CAD [status post] stent includes (for example): Light duty and sedentary activity are not precluded by [V]eteran’s coronary artery disease. Walking is not precluded due to the heart condition and has been encouraged by his physicians. In 2018 he noted to Cardiology that he walks greater than one mile and in 2019 he noted to cardiology that he has no dyspnea on exertion. In 2020 he noted to cardiology after stent placement that he is returning to his ADL’s and denies chest pain or shortness of breath, however he is still fatigued. Suggested exertional limitations include: occasional lift/carry, push/pull: 10 lb.; frequent: 5 lb. stand/walk: for total of 4-6 hours/8 hour workday. sit: for total of 6-8 hours/8 hour work day. kneeling, crouching, crawling: occasional. climbing ramps/stairs: minimal to occasional. balancing: unlimited. No manipulative, visual, communicative limitations. As per the heart catheterizations and echocardiogram as noted in the above record review the [V]eteran’s LVEF calculates at =/> 5-7. The left ventricular ejection fraction (LVEF) basically refers to the percentage of blood that is pumped out of the left ventricle with each heartbeat. The LVEF measurement reflects the amount of blood pumped out of the left [ventricle] with each contraction. It is an indicator of how well the heart is working. A normal left ventricle ejection fraction (LVEF) is 55-70%. This Veteran’s LVEF is within normal limits as is reflected in the medical record review. The 2019 left heart cath report noted moderate - nonobstructive disease left system (an stent was also placed at that time) and cardiology diagnosed on followup CAD of native coronary artery of native heart without angina pectoris. Although it is noted that the subjectively noted to cardiology (in the 2020 notation) that a stent was placed and he currently had fatigue, the notes from the hospital and/or private cardiologist pertaining to the 2020 stent are not available for review. Thus[.] this report is provided strictly on the notes that are provided for review. Per the literature METS (metabolic equivalents) represents the working metabolic rate relative to the resting metabolic rate. One MET is the energy spent sitting at rest (resting or basal metabolic rate). A MET of 5 indicates five times the energy expended compared to sitting still. Thus yardwork (mowing) has a value of 5 METS. Tennis would have a value of 8. METS is calculated based on how the body uses energy and takes into account many factors such as age, weight, history of exercise and fitness, comorbidities including heart function, lung function, etc. In the case of this [V]eteran, separating out his other factors (such as decreased lung function, morbid obesity, poor physical fitness) and looking strictly at heart function with a normal LVEF and providing consideration for his subjective complaints as noted by cardiology in the 2020 documentation the METS calculates at =/> 5-7 (such as yardwork, golf, brisk walking). Stress testing not indicated for this report as it is not without risk in this Veteran with multiple comorbidities including CAD [status post] stents and history of Atrial Fibrillation. METS, due to cardiac function, as based on the medical record review and normal LVEF. The objective evidence fails to support congestive heart failure. There is no diagnosis for congestive heart failure. No chronic congestive heart failure, no acute congestive heart failure. In conclusion, the examiner reiterated, This consult was converted to ACE, e[-]file review. This C+P clinic does not provide clinical exams secondary to COVID 19 precautions. Upon discussion with the Veteran he did not wish for a VVC appointment, nor did he wish to have a telephone appointment. The Veteran declined/refused a VVC or telephone appointment. Therefore[,] this report is provided as an e-file review without physical [examination] or video or telephone interview. Review of the Veteran’s VA treatment records reflects a July 2019 cardiology note indicating the Veteran was still working in his yard without limitations. An April 2020 VA treatment record reflects the Veteran’s report of doing activities, such as cutting down trees. A September 2020 VA treatment record reflects the Veteran does yardwork. Upon careful review, the evidence of record does not show that the Veteran’s ischemic heart disease, to include coronary artery disease, has manifested as more than one episode of acute congestive heart failure; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Accordingly, the Board concludes that the Veteran’s coronary artery disease does not warrant a rating in excess of 30 percent. The Board has considered the private opinion from July 2019 which noted METs testing based on >3-5 METs with dyspnea and fatigue however, as discussed above the private opinion noted that an exercise stress test was scheduled for several weeks in the future. Further, if an interview-METS test was warranted the private opinion failed to provide a thorough rationale for such. An increased 60 percent rating is warranted with workload of greater than 3 METS but not greater than 5 METs that results in dyspnea, fatigue angina, dizziness or syncope. Here there is no evidence of such. The Board notes that there is no evidence that the Veteran has experienced more than one episode of acute congestive heart failure in the past year, or a 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. Rather as discussed in great detail by the September 2020 VA opinion the Veteran’s coronary artery disease has been manifested by a workload of 5-7 METs with dyspnea, fatigue, and angina and evidence of left ventricular dysfunction with an ejection fraction of 55 percent. As such the Board finds that an increased 60 percent rating is not warranted. Accordingly, the Board concludes that the Veteran’s coronary artery disease does not warrant a rating in excess of 30 percent. TDIU In order to establish service connection for a total rating based upon individual unemployability due to service-connected disability, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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 age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran’s service-connected disabilities precluded him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. As an initial matter, the Board notes that the Veteran met the schedular requirements for TDIU as of July 28, 2014. The Veteran is service connected for the following: unspecified trauma and stressor-related disorder (50 percent from August 25, 2016), atrial fibrillation associated with hypertension (10 percent from February 15, 2008 and 30 percent from January 2, 2014), ischemic heart disease (30 percent from July 28, 2014), hypertension (20 percent from November 20, 1989 and 10 percent from July 1, 1993), and tinnitus (10 percent from May 8, 2018). Thus, the Veteran has a 60 percent combined disability rating as of July 28, 2014. Upon review, the Board finds the evidence fails to demonstrate that the Veteran was unable to obtain gainful employment during this period. In a July 2014 VA Form 21-8940, the Veteran reported that he last worked full-time five years prior and that he became too disabled to work three years prior. During the March 2015 VA examination, when asked if the Veteran’s heart condition impacted his ability to work. The examiner wrote, Yes, but only when in a [fibrillation] which is now infrequent. From his IHD[,] [he] states [he] gets chest pains and shortness of [breath] if [he] exerts himself. [He] does exercise 30 minutes a day. [He] could do sedentary work but physically demanding work would be more difficult. From a medical standpoint there would be no contraindication to working in a loosely supervised situation requiring little interaction with the public. Pursuant to the July 2020 Board remand, the Veteran was asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to address the matter of TDIU prior to August 26, 2016. However, to date, the Veteran has not submitted the requested form and has not established by the submission of any further information or evidence that his service-connected disabilities alone rendered him unable to obtain and retain substantially gainful employment prior to August 26, 2016, despite being given the opportunity to do so. The duty to assist is not a one-way street; a claimant cannot remain passive when he or she has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist a claimant, not a duty to prove his or her claim while the claimant remains passive); accord Wood v. Derwinski, 1 Vet. App. 190 (1991). In sum, there is no persuasive evidence of record demonstrating that prior to August 26, 2016, the Veteran’s service-connected disabilities alone rendered him unable to obtain and retain substantially gainful employment, nor is the evidence in a state of equipoise on that question. As such, the Veteran’s claim for a TDIU prior to August 26, 2016 is denied. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.