Citation Nr: 21062760 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-04 842 DATE: October 12, 2021 ORDER Entitlement to a 60 percent evaluation, and no greater, prior to April 7, 2011, and from August 1, 2011, through November 5, 2013, for coronary artery disease is granted. Entitlement to a 100 percent evaluation from April 7, 2011, through July 31, 2011, and beginning again November 6, 2013, for coronary artery disease is granted. Entitlement to a TDIU is granted. FINDINGS OF FACT 1. Prior to November 6, 2013, the majority of the echocardiograms in the record demonstrated an estimated ejection fraction of 30 to 50 percent. 2. On April 7, 2011, the Veteran underwent coronary bypass surgery to treat his coronary artery disease. 3. Beginning November 6, 2013, the Veteran had a diagnosis of chronic systolic congestive heart failure. 4. The Veteran's service-connected disabilities, particularly the coronary artery disease, preclude him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 60 percent, and no greater prior to April 7, 2011, and from August 1, 2011, through November 5, 2013, for coronary artery disease have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.104, Diagnostic Code 7017-7005. 2. The criteria for a 100 percent evaluation from April 7, 2011, through July 31, 2011, and beginning November 6, 2013, for coronary artery disease have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.104, Diagnostic Code 7017-7005. 3. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2018. This case was previously before the Board in May 2018, August 2020, and March 2021, when it was remanded for development. The case has been returned to the Board for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 1. Entitlement to an initial evaluation in excess of 30 percent prior to January 22, 2020, for coronary artery disease The Veteran is in receipt of a 30 percent evaluation for coronary artery disease effective August 31, 2010, until January 22, 2020, on which date a 100 percent evaluation for this disability became effective. The Veteran's coronary artery disease is rated under Diagnostic Code (DC) 7017-7005. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for coronary artery disease that has been treated with coronary bypass surgery. Under this code, a 30 percent evaluation is warranted where the documented coronary artery disease results in dyspnea, fatigue, angina, dizziness, or syncope with a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x ray. A 60 percent evaluation is warranted for documented coronary artery disease resulting 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 resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricle ejection fraction (LVEF) of 30 to 50 percent. A 100 percent evaluation is warranted for documented coronary artery disease resulting in chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of less than 30 percent. 38 C.F.R. § 4.104. Further, DC 7017 provides for a 100 percent evaluation for the three months following hospital admission for coronary bypass surgery. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. Where the MET level cannot be determined by exercise testing for medical reasons, an estimation by a medical examiner of the MET level that results in dyspnea, fatigue, angina, dizziness, or syncope may be used, provided it is supported by specific examples. 38 C.F.R. § 4.104, Note (2). Here, the Veteran's VA treatment records document a visit to the emergency room on March 21, 2011, for chest pain. An electrocardiogram (EKG) revealed an ejection fraction of 45-50 percent. The Veteran was transferred by ambulance to a private hospital specializing in cardiology, where he underwent cardiac catheterization and was recommended for his third coronary bypass surgery. This surgery was scheduled for April 7, 2011. The Veteran underwent the surgery, and a pacemaker was implanted as well. VA attempted to obtain the private records related to this surgery, but the Veteran did not respond to requests for authorization for release of the records. In March 2012, the Veteran attended a VA examination, at which the examiner noted the Veteran did not have chronic congestive heart failure or any acute episodes of congestive heart failure in the prior year. The examiner estimated angina resulting from activity at a level of 5-7 METs, such as golfing without a cart, pushing a lawn mower, or heavy yard work like digging. The examiner noted an EKG and x-ray given earlier that month, which demonstrated evidence of cardiac hypertrophy or dilatation. The examiner did not report any estimated ejection fraction from the testing. The Veteran underwent a series of cardiac stress tests with his private cardiologist after the coronary bypass surgery. In April 2013, the estimated ejection fraction was 48 percent; later in April 2013, the estimated ejection fraction was 30 percent; in May 2013, the estimated ejection fraction was 52 percent; in October 2013, the estimated ejection fraction was 35 to 45 percent. On November 6, 2013, the Veteran's private cardiologist added a diagnosis of chronic systolic congestive heart failure to his medical records. This diagnosis remained in the Veteran's chart until the Veteran switched to a different private cardiologist in October 2019. Another diagnosis of acute-on-chronic congestive heart failure was made on January 22, 2020. After review of the record, the Board finds that an increase is warranted for the Veteran's coronary artery disease. First, prior to April 7, 2011, there is testing with an estimated ejection fraction of 45 to 50 percent, which meets the criteria for a 60 percent evaluation for this first portion of the period on appeal. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (separate ratings can be assigned for separate periods of time based on facts found where an initial rating is on appeal). A higher evaluation is not warranted, as there is no evidence during this period of chronic congestive heart failure, an ejection fraction of 30 percent or less, or symptoms arising from a workload of 3 METs or less. Next, the Veteran underwent coronary bypass surgery on April 7, 2011. Therefore, under DC 7017, he is entitled to a 100 percent rating for the three months following the surgery. After this period, the evidence includes the VA examination and several private echocardiograms. Of the four ejection fraction estimates obtained on private echocardiograms in 2013, three were between 30 and 50 percent, and the fourth, in May 2013, was greater than 50 percent. However, the Board does not find this fourth testing result to be indicative of the Veteran's disability picture during this time period, given the consistency of the three other ejection fraction estimates generated within months of the May 2013 estimate. The Board notes the March 2012 VA examination only gave information regarding the Veteran's diagnoses at the time and METs levels; it did not describe the results of the EKG and chest x-ray done in conjunction with the examination. Considering the consistently low ejection fraction both prior to and after the examination, the Board does not find the interview-based METs level estimate at the examination, which corresponds to the criteria for a 30 percent evaluation, to be a better descriptor of the Veteran's disability. For these reasons, the Board finds a 60 percent evaluation is warranted for the period following the temporary total disability evaluation for coronary bypass surgery. Again, a higher evaluation is not warranted, as there is no evidence during this period of chronic congestive heart failure, an ejection fraction of 30 percent or less, or symptoms arising from a workload of 3 METs or less. Finally, the Board notes the diagnosis made by the Veteran's private cardiologist of chronic systolic congestive heart failure. Chronic congestive heart failure meets the criteria for a 100 percent evaluation; therefore, the Board finds a 100 percent evaluation is warranted beginning November 6, 2013, the date the diagnosis was added to the Veteran's medical chart. In conclusion, the Board finds a 60 percent evaluation is warranted prior to November 6, 2013, excepting a period of 100 percent evaluation from April 7, 2011, through July 31, 2011; and a 100 percent evaluation is warranted beginning November 6, 2013, for the Veteran's coronary artery disease. TDIU VA will grant entitlement to TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The sole fact that the Veteran was or is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016), and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop, 38 C.F.R. § 4.16(a). The regulations provide that if there is only one service-connected disability impeding employability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). 2. Entitlement to a TDIU The Veteran submitted a VA Form 21-8940 in October 2013, reporting being self-employed full-time as a plumber from 1973 until August 2013. He also reported losing two years of work from coronary artery disease. The Veteran reported having completed two years of high school, and reported that his cardiologist indicated his heart condition is too advanced and severe to do any strenuous activity. He submitted a second Form 21-8940 in June 2014 reflecting similar complaints, although he reported working full-time until April 2013. At the April 2018 Board hearing, the Veteran reported last working full-time in 2008. In addition to the coronary artery disease discussed above, the Veteran is also service connected for posttraumatic stress disorder (PTSD), bilateral hearing loss, tinnitus, a scar, hypertension, gastroesophageal reflux disease, and erectile dysfunction. The record indicates the Veteran's coronary artery disease restricts his ability to engage in physical activity, such as manual labor. Throughout the appeal period, the Veteran consistently reported shortness of breath and chest pain upon exertion, and occasionally at rest as well, accompanied by dizziness. (Continued on the next page) The record reflects that the Veteran's PTSD disability manifests primarily in anxiety, feelings of sadness, lack of energy, and avoidance of social situations. While these symptoms might not preclude sedentary work like administrative or office-type jobs, the Veteran completed two years of high school and did not have additional education. Further, the Veteran's only work was as a plumber, a specialized industry that does not necessarily develop transferable skills in its practice. Therefore, the Board finds that, considering the Veteran's educational and employment history, his service-connected disabilities preclude him from securing and following substantially gainful employment, and a TDIU is warranted. Regarding the effective date for the TDIU, the Board notes the record is not clear as to when the Veteran last worked full-time. The RO, as the agency of original jurisdiction, will set an effective date for the grant of entitlement to a TDIU after determining the date on which the Veteran was last able to secure or follow a substantially gainful occupation due to his service-connected disabilities. This preserves the Veteran's right to appeal the effective date awarded. See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey, 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.