Citation Nr: 21005151 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 14-36 764 DATE: January 29, 2021 ORDER An effective date prior to September 11, 2013 for the award of a 60 percent evaluation for coronary artery disease (CAD) with cardiac valvulopathy, status post angioplasty with stent, is denied. A total disability rating based on individual unemployability (TDIU), prior to prior to December 6, 2010, is denied. REMANDED Entitlement to service connection for a tremor disorder (claimed as Parkinson’s disease), as secondary to a service-connected disability and/or exposure to herbicide agents, is remanded. Entitlement to service connection for a disorder manifested as dry mouth, as secondary to a service-connected disability, is remanded. Entitlement to a disability rating in excess of 30 percent for fracture, right fibula, with traumatic arthritis, right ankle with scar, is remanded. FINDINGS OF FACT 1. It is not factually ascertainable that the Veteran’s service-connected CAD with cardiac valvulopathy, status post angioplasty with stent increased in such severity of symptomatology to warrant a 60 percent rating prior to his VA examination on September 11, 2013. 2. Prior to December 6, 2010, the Veteran’s service-connected fracture, right fibula, with traumatic arthritis, right ankle with scar did not render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 11, 2013, for the grant of a 60 percent rating for CAD with cardiac valvulopathy, status post angioplasty with stent, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.114, 3.400. 2. The criteria for a TDIU prior to December 6, 2010 have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1966 to January 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in May 2013, July 2013 and April 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran initially testified before a Veterans Law Judge (VLJ) at a hearing held at the RO in March 2015. In a May 2017 letter, the Veteran was informed that the VLJ who conducted the March 2015 hearing was no longer available to participate in the adjudication of his claims. He was provided the opportunity to request a new hearing in accordance with 38 C.F.R. § 20.707 and 20.717, and in June 2017, requested a new hearing before a different VLJ. That hearing was held in January 2019 before the undersigned VLJ. At that hearing, it was determined that an August 2018 statement of the case regarding the issue of entitlement to an earlier effective date for CAD, had not yet been provided to the Veteran. Therefore, although the issue of an earlier effective date for CAD had not yet been formally appealed to the Board, jurisdiction over the claim was assumed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Similarly, the Board notes that the issue of entitlement to TDIU prior to December 6, 2010, was not decided below and has not been certified to the Board. However, it assumes jurisdiction over the issue pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). While a traditional TDIU claim considers whether a Veteran is unemployable due to any service connected disability or disabilities, a derivative Rice TDIU claim, which is the claim before the Board, is limited to whether the Veteran is employable due to the service connected disabilities on appeal. Here, that disability is the Veteran’s fracture, right fibula, with traumatic arthritis, right ankle with scar. Analysis Earlier Effective Date – CAD The Veteran has asserted that he is entitled to an effective date earlier than September 11, 2013, for the grant of a 60 percent rating for CAD, with cardiac valvulopathy, status post angioplasty with stent (hereinafter, “CAD”). However, the Board finds that it is not factually ascertainable that the Veteran’s CAD was productive of symptoms which warrant a 60 percent rating prior to his September 2013 VA examination. The Veteran’s CAD is currently evaluated under Diagnostic Code 7005, which provides that a 30 percent rating contemplates a workload of greater than 5 METs, but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram or X-ray. A 60 percent rating contemplates 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, which results in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. A 100 percent rating contemplates documented coronary artery disease or myocardial infarction resulting in chronic congestive heart failure, or; workload of 3 METs or less, resulting in dyspnea, fatigue, angina, dizziness or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. By way of history, the Veteran was initially granted service connection for CAD in a May 2010 rating decision. At that time, a disability rating of 10 percent was assigned, based on the need for continuous medication as well as a METs value greater than 7 but less than 10 METS, resulting in dyspnea, fatigue, angina, dizziness or syncope, or continuous medication. The rating was assigned after review of the findings of a February 2010 VA examination which showed symptoms such as angina, shortness of breath, dizziness and fatigue without syncopal attacks. An echocardiogram revealed an ejection fraction of 75 to 80 percent, and the examiner estimated a METs level greater than 9. The Veteran disagreed with the rating in a June 2010 statement and, subsequently, in a May 2011 rating decision, the 30 percent rating was given an effective date of December 18, 2009, the date the Veteran filed his claim. This increase was based on medical evidence of record which showed a workload greater than 5 METs but not greater than 7 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope. The Veteran again disagreed with the assigned rating and was provided with a VA examination on September 11, 2013. At that time, the Veteran reported experiencing shortness of breath, dizziness, fatigue and syncope. Testing showed a workload greater than 3 METs, but less than 5 METs, with dyspnea, fatigue, angina, dizziness and syncope. The Veteran had no acute episodes of congestive heart failure in the previous year. Based on these findings, in an April 2014 rating decision his disability rating for CAD was increased to 60 percent, effective as of the date of the examination. Based on this evidence, a higher rating is not warranted. The evidence shows that prior to September 11, 2013, the Veteran’s CAD resulted in a workload of greater than 5 METs but not greater than 7 METs causing dyspnea, fatigue, angina, dizziness, or syncope. Additionally, prior to that date, there is no indication that the Veteran’s CAD resulted in 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 causing dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Accordingly, a rating in excess of 60 percent prior to September 11, 2013 is not warranted for the Veteran’s CAD. 38 C.F.R. § 4.104, Diagnostic Code 7005. The Board has considered the Veteran’s lay assertions regarding the severity of his symptoms. Certainly, laypersons are competent to attest to physical symptoms that are experienced or observed. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that the lay evidence does not establish a greater degree of functional impairment than that contemplated by the currently assigned disability ratings. Accordingly, the Board finds that the appropriate effective date for the 60 percent rating in this case would be September 11, 2013, which is the later of the date of claim and the date entitlement arose. Therefore, the claim for an earlier effective date is without legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board finds that the criteria for an earlier effective date for the grant of a 60 percent rating for CAD is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. TDIU prior to December 6, 2010 As noted above, a claim of entitlement to TDIU prior to December 6, 2010 has been raised by the record during the applicable appeal period. While the Veteran initially filed a claim for entitlement to TDIU on March 8, 2011, the Board has assumed jurisdiction over the claim pursuant to Rice, finding that the TDIU claim was raised by the record prior to that date. Specifically, the RO found that the Veteran submitted a claim for an increased disability rating for his service-connected fracture, right fibula, with traumatic arthritis, right ankle with scar (hereinafter “right ankle”) on December 6, 2010. Thus, the Board finds that the issue of entitlement to TDIU prior to December 6, 2010 has been raised by the record, and the appeal period begins on December 6, 2009, the date VA received the claim for an increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). The established policy of VA reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317(1992). The Court recently held that “substantially gainful occupation” contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The central inquiry in a TDIU claim is whether the veteran’s service-connected disability alone is of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board notes that the Veteran has been awarded a combined schedular rating of 100 percent, effective December 6, 2010. Thus, the matter of a TDIU from that date forward is moot. See Herlehy v. Principi, 15 Vet. App. 33 (2001). Importantly, because the Veteran did not have a single disability rated at 100 percent and any other service-connected disabilities rated at 60 percent or more for this time period, the concerns of Bradley v. Peake, 22 Vet. App. 280 (2008) are not raised. In this case, during the applicable appeal period (since the application for an increased rating for his service-connected ankle disability on December 6, 2010, plus the one-year look back), the combined rating for the Veteran’s service-connected disabilities was 90 percent, rated as follows: posttraumatic stress disorder (PTSD), rated at 30 percent; CAD, 30 percent; bowel dysfunction, rated at 30 percent from February 8, 2010; diabetes mellitus with erectile dysfunction, 20 percent; fracture, right fibular, with traumatic arthritis, right ankle with scar, 20 percent; peripheral neuropathy of the right and left upper extremities, 20 percent each from October 4, 2010; peripheral neuropathy of the right and left lower extremities, 10 percent each; and hypertension, 10 percent. Thus, the schedular requirements for a TDIU rating were met throughout the applicable appeal period. The question remaining is whether the Veteran’s service-connected disabilities (alone) rendered him incapable of participating in a substantially gainful occupation. The evidence shows that the Veteran is a high school graduate who pursued training to become an electrician. He was self-employed as such until September 2001. A letter to VA from the Veteran, received in May 2006, indicated that the Veteran was unable to work due to physical restrictions related to his shoulders. A May 2006 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, completed by the Veteran’s former employer, indicated that he stopped working in October 2001 due to limitations related to injuries to his shoulders. At his January 2019 hearing, the Veteran testified that his ankle pain would cause him to have to sit down on the job, which was only possible because he was a foreman. He also testified that he had stopped working in September 2001 due to torn rotator cuffs in his shoulders. The Board must find that the evidence does not indicate that the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment in the year prior to December 6, 2010. Although the Veteran was not working during this time period, the record reflects that he did not stop working due to a service-connected disability. Rather, a shoulder disability prevented him from working in 2001. Although the Veteran testified that his right ankle disability necessitated occasional rest while working, the Board cannot find that, prior to December 6, 2010, this need to occasionally rest was so severe as to preclude the Veteran from participation in substantially gainful employment. While the Board does not doubt that the Veteran’s service-connected right ankle disability had an impact on his employability, the weight of the evidence does not support the contention that the disability, alone, was of such severity so as to preclude his participation in any form of substantially gainful employment based on his occupational background and level of education. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, supra. REASONS FOR REMAND Tremor disorder The Veteran asserts that he developed a tremor disorder as a result of the medication taken to treat his service-connected disabilities. In the alternative, he contends that he developed a tremor disorder due to his in-service exposure to herbicide agents. The Veteran served in the Republic of Vietnam; therefore, his exposure to herbicide agents is conceded. At his January 2019 hearing, the Veteran testified that he was told by a doctor that his tremor disorder was a “precursor” to Parkinson’s disease. Although the Veteran has not been formally diagnosed with Parkinson’s disease, the Board notes that it a possible diagnosis has been suggested and Parkinson’s disease is a disease identified as presumptively associated with herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.309 (e). To date, the Veteran has not undergone a VA examination in connection with his claim. Based on the above, the Board finds that VA’s duty to assist the Veteran by affording him a VA examination has been triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Dry mouth disorder Similarly, the Board finds that VA’s duty to assist the Veteran has been triggered in regard to his claim for entitlement to a disorder manifested by a dry mouth. Initially, the Board notes that the Veteran does not contend, nor does the evidence suggest, that any such disorder was directly due to his military service. Rather, the Veteran asserts that he developed a disorder manifested by dry mouth as a direct result of the medication he takes to treat his service-connected disabilities. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (2008) (claims which have no support in the record need not be considered as the Board). The record contains two statements from the Veteran’s treating dentist, in which she opined that the Veteran’s dry mouth was caused by the medication he takes to treat his service-connected disabilities, and that this condition caused recurrent tooth decay. In addition, at a March 2015 hearing before a Decision Review Officer, the Veteran testified that his niece, a pharmacist by training, confirmed that his prescribed medication—specifically trazodone, prescribed to treat his service-connected PTSD—caused dry mouth. At his January 2019 hearing before the undersigned, the Veteran testified that the only medication he regularly took was the medication prescribed by VA to treat his service-connected disabilities. Based on this evidence, the Board finds that a VA examination is warranted. Id. Right ankle rating The Veteran last underwent a VA examination of his service-connected right ankle fracture with osteoarthritis and surgical scar in November 2014, over 6 years ago. Normally the mere passage of time would not warrant a new examination; however, where there is a suggestion of worsening, as is the case here, a new examination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). his January 2019 hearing, the Veteran testified that he experienced his right ankle locking up, to include during flare-ups. He also testified that his right ankle scar had become painful. In addition, since the November 2014 examination, the United States Court of Appeals for Veteran’s Claims issued a decision in which it held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal examinations include joint testing for pain on both active and passive motion, and in weight bearing and non-weight bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The record reflects that no such testing has been accomplished. Given the allegations of possible worsening of the Veteran’s ankle disability, and the need for specific testing results and clinical findings to evaluate the disability, the claim must be remanded to afford the Veteran a new VA examination. See 38 C.F.R. § 4.2; see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the etiology of any tremor disorder. The examiner is asked to formally identify all tremor-related disorders present at any time during the appeal period. Then, with respect to each, the examiner is asked to address whether it is at least as likely as not (that is, a 50 percent or greater probability) that each identified tremor-related disorder is related to an in-service injury, event, or disease, including conceded herbicide exposure. The examiner is also asked to address whether each diagnosed disorder was a) caused by, or b) aggravated by, a service-connected disability, to include as due to medications taken at any time to treat a service-connected disability. 2. Schedule the Veteran for an examination to determine the etiology of any disorder manifested by dry mouth. The examiner is asked to formally identify all such disorders present at any time during the appeal period. Then, with respect to each, the examiner should address whether each diagnosed disorder was a) caused by, or b) aggravated by, a service-connected disability, to include as due to medications taken at any time to treat a service-connected disability. 3. Schedule the Veteran for an examination to determine the current severity of his service-connected right ankle fracture with osteoarthritis and surgical scar. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.