Citation Nr: 21063355 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 13-34 015A DATE: October 14, 2021 ORDER An initial disability rating in excess of 30 percent for the service-connected ischemic heart disease (IHD) is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period on appeal prior to April 24, 2017 is denied. REMANDED Service connection for obstructive sleep apnea (OSA), to include as secondary to the service-connected diabetes mellitus, posttraumatic stress disorder (PTSD), hypertension, and IHD, is remanded. FINDINGS OF FACT 1. Since the effective date of service connection, the preponderance of the evidence shows that, the Veteran's IHD produced metabolic equivalents (METs) of greater than 5 but less than 7 METs with left ventricular ejection fractions (LVEF) no lower than 60 percent and zero episodes of acute congestive heart failure. 2. The Veteran completed 120 college credits, but did not receive a degree, and was substantially and gainfully employed until June 2009. He had experience as a security manager/head of security. 3. As of August 30, 2008, the Veteran's service-connected disabilities included IHD, rated as 30 percent disabling, diabetes mellitus, rated as 20 percent disabling, right upper extremity diabetic neuropathy, rated as 10 percent disabling, left upper extremity diabetic neuropathy, rated as 10 percent disabling, right lower extremity diabetic neuropathy, rated as 10 percent disabling, and left lower extremity diabetic neuropathy, rated as 10 percent disabling. 4. Prior to April 24, 2017, the Veteran's service-connected disabilities did not preclude him from maintaining substantially gainful employment consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for the Veteran's service-connected IHD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7005. 2. Prior to April 24, 2017, the criteria for the assignment of a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to August 1970 and from November 1975 to March 1987. This case is before the Board of Veterans' Appeals (Board) on appeal from September 2009, July 2011, and April 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the September 2009 rating decision, the RO denied service connection for OSA. In April 2010, VA received the Veteran's Notice of Disagreement (NOD). In the July 2011 rating decision, the RO granted service connection for IHD and assigned a 30 percent initial disability rating, effective from August 31, 2010. In the April 2012 rating decision, the RO denied entitlement to a TDIU. Furthermore, the RO assigned a new effective date of August 30, 2008 for the grant of service connection for IHD. In June 2012, VA received the Veteran's NOD with the July 2011 and April 2012 rating decisions. In November 2013, the RO issued two Statements of the Case (SOCs), one for the issue of service connection for OSA and another for an increased initial disability rating for the service-connected IHD and entitlement to a TDIU. In December 2013, in two separate VA Form 9s, the Veteran appealed these issues to the Board. In May 2017, the Veteran testified at a video conference hearing at the RO before a Veterans Law Judge (VLJ) other than the undersigned and who is no longer employed by the Board. A transcript of that testimony is of record. In a September 2017 rating decision, the RO granted entitlement to a TDIU, effective from May 19, 2017. In October 2017 and July 2019, the Board remanded the case for further development and adjudicative action. In an April 2020 rating decision, the RO assigned a new effective date of April 24, 2017 for the assignment of a TDIU. As this does not constitute a full grant of benefits sought on appeal, the issue of assignment of a TDIU for the period on appeal prior to April 24, 2017 remains on appeal. In a July 2021 letter, the Board advised the Veteran that the VLJ who conducted the May 2017 hearing was no longer employed by the Board and advised the Veteran of his right to a new hearing held by another VLJ. However, in a July 2021 correspondence, the Veteran declined a new hearing. Increased Rating 1. Entitlement to an initial disability rating in excess of 30 percent for the service-connected IHD. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). When an appeal arises from the initially assigned disability rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms or differing levels of severity can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's IHD is rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. Pursuant to Diagnostic Code 7005 for evaluating coronary artery disease (CAD), a workload of greater than 7 METs but no greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or CAD requiring continuous medication, warrants a 10 percent rating. A workload of greater than 5 METs but no greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilation on an electrocardiogram, echocardiogram, or x-ray warrants a 30 percent rating. More than one episode of acute congestive heart failure in the past year, a workload greater than 3 METs but no greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with a left ventricular ejection fraction (LVEF) of 30 to 50 percent, warrants a 60 percent rating. A 100 percent rating is warranted for chronic congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or a left ventricular dysfunction with a LVEF of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005. One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level 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. 38 C.F.R. § 4.104, Note 2. During the period on appeal, the Veteran received an initial VA examination for his IHD in August 2011. An echocardiogram taken after the examination, in September 2011, indicated evidence of cardiac hypertrophy but no evidence of cardiac dilation. LVEF was recorded as 61 percent. An exercise-based METs test was not conducted. However, the examiner conducted an interview-based METs test. During the interview, the Veteran reported dyspnea and fatigue; in particular, he reported shortness of breath during activities such as going up stairs, shoveling snow, carrying groceries, lifting weights, and walking 1/4 mile. Based on the results of the interview, the examiner estimated a METs level of 5-7 METs. There was no evidence of congestive heart failure. The Veteran received another VA examination for his IHD in July 2017. An echocardiogram taken by the examiner revealed no evidence of cardiac hypertrophy or dilation. LVEF was recorded as 60 to 65 percent. An exercise-based METs test was not conducted. However, the examiner conducted an interview-based METs test. During the interview, the Veteran reported dyspnea. Based on the results of the interview, the examiner estimated a METs level of 5-7 METs. There was no evidence of congestive heart failure. The Veteran most recently received a VA examination for his IHD in April 2018. An echocardiogram taken by the examiner indicated no evidence of cardiac hypertrophy or dilation. LVEF was recorded as 60 to 65 percent. An exercise-based METs test was not conducted. However, the examiner conducted an interview-based METs test. During the interview, the Veteran reported dyspnea and fatigue with physical activity; however, the examiner opined that the Veteran's dyspnea and fatigue were "related to his extensive history of smoking" of "1-1.5 packs per day x40 years." In support, the examiner cited the results of a March 2015 exercise-based METs test, which revealed a METs level of 10.2 and a LVEF of 71 percent. The examiner further stated that the Veteran's bilateral knee osteoarthritis and diabetic neuropathy of the upper and lower extremities similarly limit physical activity, and that the Veteran reported non-activity-related heart palpitations were likely related to consumption of approximately 10 cups of coffee per day. Based on the results of the interview, the examiner estimated a METs level of 5-7 METs. There was no evidence of congestive heart failure. Based on the foregoing, the evidence does not suggest that the Veteran's symptoms warrant a rating for the service-connected IHD in excess of 30 percent at any time during the period on appeal. Specifically, there is no evidence of LVEF of less than 50 percent or METs of no greater than 5. The Veteran has not contended, and the evidence does not show, that his IHD has worsened since his last VA examination in April 2018. Therefore, as the preponderance of the evidence is against the assignment of a rating in excess of 30 percent, an increased rating for the service-connected IHD is not warranted. TDIU 2. Entitlement to a TDIU due to service-connected disabilities for the period on appeal prior to April 24, 2017. The Veteran seeks assignment of a TDIU prior to the current effective date of April 24, 2017. 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, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. 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). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran's: work history, education, skill, and training; the Veteran's physical ability to perform work activities; and the Veteran's mental ability to perform work activities required by the Veteran's occupation. In determining unemployability, consideration should be given to the veteran's prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Faust, 13 Vet. App. 342 (2000). Entitlement to a TDIU does not require 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). All reasonable doubt as to any material matter, including the degree of disability, will be resolved in favor of the claimant. 38 U.S.C. § 5107, 38 C.F.R. § 4.3. The Veteran met the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) for the entire period on appeal prior to April 24, 2017. As of August 30, 2008, the Veteran's combined disability rating was 70 percent. Furthermore, the Veteran's service-connected disabilities included IHD, rated as 30 percent disabling, diabetes mellitus, rated as 20 percent disabling, right upper extremity diabetic neuropathy, rated as 10 percent disabling, left upper extremity diabetic neuropathy, rated as 10 percent disabling, right lower extremity diabetic neuropathy, rated as 10 percent disabling, and left lower extremity diabetic neuropathy, rated as 10 percent disabling. As of April 29, 2010, the Veteran's service-connected disabilities also included hypertension, rated as 10 percent disabling, tinnitus, rated as 10 percent disabling, and hemorrhoids, rated as noncompensable. As of May 17, 2012, the Veteran's combined disability rating was increased to 80 percent after the rating for diabetes mellitus was increased from 20 percent to 40 percent, effective from that date. However, given that the diabetes mellitus and diabetic neuropathy of the bilateral upper and lower extremities result from a common etiology and are rated at a combined disability rating of 50 percent from August 30, 2008, the schedular criteria for a TDIU are satisfied from August 30, 2008. 38 C.F.R. § 4.16(a)(2). Accordingly, the only remaining question is whether the Veteran's service-connected disabilities preclude substantially gainful employment consistent with his education and work history during the period on appeal prior to April 24, 2017. According to the Veteran's VA Form 21-8940 Application for Increased Compensation Based on Unemployability, received in August 2011, the Veteran worked as a security manager (also described as "head of security" during a December 2011 VA psychiatric examination) from December 1992 to June 2009 and has not worked since 2009. At that time, he was laid off due to a "corporate change." December 2011 VA psychiatric examination report. He completed high school and 120 college credits but does not have a college degree or higher. A psychosocial assessment dated April 2017 further reveals that the Veteran worked as a cab driver, car salesman, bartender, and factory worker between 1987 and 1992. During the May 2017 Board hearing, the Veteran testified that his duties as a security manager required a combination a combination of sitting at a computer and standing/walking, including up stairs, to check on various guard posts throughout office buildings on a one-block campus. See May 2017 Board hearing transcript at 90-91. Regarding the impact of his service-connected IHD, the Veteran reported experiencing shortness of breath during physical activity. During the August 2011 VA examination for his IHD, the Veteran reported shortness of breath while going up stairs, shoveling snow, carrying groceries, lifting weights, and walking 1/4 mile. However, the examiner opined that the Veteran's IHD did not impact his ability to work. Regarding the impact of his service-connected diabetes mellitus, as of an August 2009 VA examination, the Veteran suffered from "minor hypoglycemic reactions due to physical activity about once per week." At that time, the Veteran reported no restrictions on activities of daily living due to his diabetes mellitus. An August 2011 examiner for the diabetes mellitus opined that the Veteran's diabetes mellitus did not affect his ability to work. Regarding the impact of the service-connected diabetic neuropathy, during the August 2009 examination for diabetes mellitus, the Veteran reported tingling and burning in the feet and "slight" numbness in the hands. Moreover, the August 2011 examiner found that the neuropathy was manifested by mild constant pain and numbness in the bilateral upper extremities and moderate constant pain and numbness in the bilateral lower extremities. Furthermore, there were mild paresthesias and/or dysesthesias in the right upper extremity and bilateral lower extremities. Reflexes were decreased (1+) in all extremities. Overall, the examiner found that the Veteran's diabetic neuropathy approximated mild incomplete paralysis of the sciatic nerve and concluded that the diabetic neuropathy did not impact the Veteran's ability to work. Regarding the impact of the service-connected tinnitus, the Veteran has reported a "high-pitched whine" in the left ear, which was especially noticeable in quiet situations, but has not reported any functional impairment due to the tinnitus. September 2011 VA examination report. Furthermore, a September 2011 examiner for the tinnitus concluded that the tinnitus had no effect on the Veteran's ability to work. Similarly, there is no documented functional impact due to the service-connected hypertension or hemorrhoids. After considering all of the evidence of record, including the Veteran's statements and the medical evidence, the preponderance of the evidence shows that the Veteran's service-connected disabilities did not preclude performance of substantially gainful employment prior to April 24, 2017. The determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 77F.3d 1350, 1354 (Fed. Cir. 2013). Specifically, the VA examination reports prior to April 24, 2017 suggest some level of diminished employability prospects due to the Veteran's service-connected disabilities, but not inability to maintain substantially gainful employment consistent with the Veteran's employment history. In this regard, the physical impairments identified by the Veteran and documented during the Veteran's VA examinations prior to April 24, 2017 show that the Veteran experienced impairments to walking, sitting, climbing stairs, and performing physical labor due to his service-connected disabilities. However, the evidence also suggests that the Veteran nevertheless possessed the capacity to perform work requiring a flexible combination of sitting and standing consistent with the Veteran's history of employment; moreover, there is no evidence that the Veteran's history of employment (after 1992) required physical labor or heavy lifting consistent with shoveling snow or lifting weights. Furthermore, the evidence suggests that the Veteran's service-connected posttraumatic stress disorder (PTSD) with alcohol abuse in sustained remission, which was granted service connection effective April 24, 2017, is primarily responsible for the impairments that make the Veteran unable to work. During the May 2017 Board hearing, the Veteran testified that his problems at work prior to his retirement were more mental than physical, further stating that "my biggest problem now is ability to focus for any length of time, and to concentrate." See May 2017 Board hearing transcript at 91. A January 2012 private psychosocial assessment and employability evaluation revealed that the following symptoms, in conjunction, resulted in "severe social, personal, and occupational impairment": difficulty concentrating, anxiety with 1 to 2 panic attacks per month, short and long-term memory loss, flashbacks/intrusive thoughts, insomnia and other sleep disturbance, irritability and overwhelming feelings of anger, social withdrawal, and bouts of moderately severe depression. These symptoms would more acutely interfere with the Veteran's work, particularly with regard to the managerial aspects of the work, than those from his physical impairments. Thus, given the lay and medical evidence indicating the Veteran's functional limitations due to his service-connected disabilities, and in light of his work experience, training, and education, the preponderance of the evidence is against the Veteran's claim for a TDIU for the period on appeal prior to April 24, 2017. Accordingly, the assignment of a TDIU is not warranted for the period on appeal prior to April 24, 2017. See Geib, 77 F.3d at 1354. REASONS FOR REMAND 3. Entitlement to service connection for OSA, to include as secondary to the service-connected diabetes mellitus and PTSD. The Veteran contends that his currently diagnosed OSA had onset during service or is instead etiologically related to his service-connected PTSD, diabetes mellitus, hypertension, and/or IHD. Regarding the claim of direct nexus, service treatment records (STRs) from both of the Veteran's periods of service provide no evidence of a diagnosis of OSA or any report of sleep problems. As noted above, the Veteran was not diagnosed with OSA until 2003, or 16 years after separation from service. Next, regarding the claims of secondary nexus, the Veteran has submitted medical literature which is purported to show an etiological relationship between OSA, PTSD, and diabetes mellitus. Of record are May 2018 and April 2021 VA opinions for the OSA. Furthermore, the Veteran has submitted a July 2019 private medical opinion from Dr. Shoag. The May 2018 and April 2021 examiners provided negative opinions regarding causation of the OSA by the PTSD, while Dr. Shoag provided a positive opinion. However, of the three opinions, only the May 2018 opinion addresses aggravation of the OSA by the PTSD. Additionally, none of the opinions cited above sufficiently addresses aggravation of the OSA by the service-connected diabetes mellitus, hypertension, and IHD. In particular, the April 2021 examiner provided opinions with regard to causation for nearly all of the Veteran's service-connected disabilities, despite the Veteran's contentions having been limited to the PTSD, diabetes mellitus, hypertension, and IHD. However, the April 2021 examiner gave no opinions regarding aggravation. Furthermore, the May 2018 opinion is limited to direct nexus and causation/aggravation by the service-connected PTSD. Additionally, although Dr. Shoag's July 2019 opinion briefly noted that diabetes mellitus "directly affects sleep in a negative manner and further exacerbates the sleep apnea caused by PTSD," there is no rationale to support this conclusion included in the opinion. In light of the above, an addendum VA opinion that sufficiently addresses aggravation of the OSA by the service-connected diabetes mellitus, hypertension, and IHD is required. El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The matters are REMANDED for the following action: 1. Obtain a VA opinion from regarding the current nature and likely etiology of the Veteran's obstructive sleep apnea (OSA). A complete rationale for all opinions must be provided. The claims file, including a copy of this Remand, must be made available to the examiner and the examiner must indicate that the claims file was reviewed. After reviewing the evidence and any pertinent medical literature, the examiner should answer the following questions: (a.) Is the Veteran's OSA at least as likely as not (a 50 percent or greater probability) aggravated (increased in severity beyond its natural progression) by his service-connected diabetes mellitus? (b.) Is the Veteran's OSA at least as likely as not aggravated (increased in severity beyond its natural progression) due to the service-connected hypertension? (c.) Is the Veteran's OSA at least as likely as not aggravated (increased in severity beyond its natural progression) due to the service-connected ischemic heart disease? (d.) If the examiner opines that the service-connected disabilities (singularly, or in combination) cause an increase in severity of the OSA beyond natural progression, then if possible, provide a baseline severity of the OSA prior to the aggravation. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.