Citation Nr: 21067746 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-34 134 DATE: November 5, 2021 ORDER Entitlement to service connection for a heart disability is denied. Effective July 9, 2007, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. INTRODUCTION The Veteran served on active duty from June 1974 to June 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from November 2007 and July 2010 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge. These claims were most recently remanded in July 2021, for additional development. After the issuance of an August 2021 supplemental statement of the case, the appeal has been remitted to the Board for further appellate review. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a heart disability at any time during or approximate to the pendency of the claim. 2. Prior to August 16, 2010, the Veteran's service-connected pulmonary function impairment and essential hypertension are from a common etiology for TDIU purposes. 3. Since July 9, 2007, it is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Effective July 9, 2007, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Heart Disability Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38U.S.C. §§1110, 1131; 38C.F.R. §3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases, including organic diseases of the nervous system such as are presumed to be incurred in or aggravated by service if manifest to a compensable degree within one year of separation from service. See 38U.S.C. §§1101, 1112; 38C.F.R. §§3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258 (2015). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38C.F.R. §3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The salient question presented by the Veteran's claim is whether he experienced a heart disability during the pendency of this appeal. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The evidence of record includes conflicting evidence as to the presence of a heart disability during the pendency of this appeal. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The Board may favor the opinion of one competent medical expert over that of another provided the reasons therefore are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). According to a March 2007 VA cardiology note, the Veteran reported that he was hospitalized due to "congestive heart failure" in November or December 2006 due to significant shortness of breath and difficulty with edema. Based his statements, Dr. R.D.D stated it sounded as if the Veteran underwent an echocardiogram, electrocardiogram, and a perfusion scan, but no cardiac catheterization during this hospitalization. The Veteran did not bring the resulting records to the March 2007 appointment, but Dr. R.D.D stated that he would undertake a review of them when received. A physical examination was normal, as was an electrocardiogram. No diagnoses were rendered pending a review of the records. Dr. R.D.D observed that the Veteran has been started on medication for congestive heart failure, and then modified the prescription for better long-term results. In an April 2007 VA cardiology note, Dr. R.D.D stated that he reviewed the evidence the Veteran asserts gave rise to his diagnosis of congestive heart failure, namely the treatment reports from his hospitalization at Southeast Alabama Medical Center. Dr. R.D.D specifically found that there was no mention of [congestive heart failure] in them! His [blood pressure] was normal. [Chest x-ray] revealed no [congestive heart failure]. Both the echo[cardiogram] and Cardiolite stress test [were] normal. Sleep apnea, COPD, asthma and hypertension [were] found. In essence, no cardiac problems [were] found. His current med[ications] are apparently for the [blood pressure]. Attached to an August 2007 letter from Dr. D.H.A. concerning the Veteran's employability, are series of short excerpts from medical literature. Most of these excerpts pertain to the etiological relationship between hypertension and other disabilities, such as diabetes mellitus, type II, and sleep apnea. Included among these excerpts is one that indicates that hypertension can manifest as "other problems," then provides a list of potential manifestations that includes dizziness, fatigue, low exercise tolerance, tightness, pressure or pain in the chest or arms. An October 2007 VA psychiatric note revealed that the Veteran's then current diagnoses were depressive disorder, not otherwise specified; hypertension; diabetes mellitus; sleep apnea; and chronic obstructive pulmonary disease. There was no mention of a heart disability, including congestive heart failure, coronary artery disease, or right ventricular failure. In October 2007, the Veteran underwent a VA examination that included an assessment of his claimed heart disability. The examiner reviewed treatment records from the Central Alabama Veteran's Healthcare System that revealed a problem list, which included diagnoses of hypertension and diabetes mellitus, type II, but no heart disability. The examiner then reviewed a discharge summary from the Southeast Alabama Medical Center concerning the Veteran's hospitalization from November 30, 2006 to December 5, 2006. Under the final diagnoses section in the report, the diagnoses were dyspnea, fatigue and pedal edema, severe sleep apnea, mild right-sided heart failure, marked obesity, "distant" history of asthma, and hypertension, among others. The examiner undertook an extensive review of the clinical results generated during the Veteran's hospitalization. After administering clinical testing, the examiner rendered the following diagnoses: hypertension, severe obstructive sleep apnea, moderate restrictive lung disease, right ventricular failure, obesity, and diabetes mellitus, type II, among others. The examiner opined that there was no evidence of left ventricular failure, but there were symptoms and signs that "point[ed] to" right ventricular failure. According to a March 2008 VA echocardiogram report, the impressions were, in relevant part, (1) qualitatively normal size left ventricle with adequate contractility; (2) normal mitral and aortic valves with normal doppler flows; and (3) tricuspid and pulmonic valves show normal doppler flows. During a February 2010 Decision Review Officer hearing, the Veteran testified about his belief in the presence of a heart disability (congestive heart failure) and its interrelationship with hypertension. In March 2010, the Veteran underwent a VA examination as his claimed heart disability. The examiner listed the Veteran as having no history of myocardial infarction, rheumatic fever, hypertensive heart disease, heart rhythm disturbance, valvular heart disease, other heart disease, angina, or syncope. The examiner noted that the Veteran's cardiac history was positive for hypertension, congestive heart failure, dizziness, fatigue, dyspnea. While continuous medication was required to control the Veteran's hypertension, no continuous medication was required for heart disease. The examiner also determined that the Veteran's alleged congestive heart failure was not chronic and that he had not experienced an episode in the previous 12 months. After an extensive review of the relevant evidence of record and administering a clinical evaluation, the diagnoses were hypertension controlled with medication, coronary artery disease "by history," and right ventricular failure secondary to obesity. In relevant part, the examiner then opined that the Veteran did not experience residuals of uncontrolled hypertension, such as heart disease. During a November 2012 hearing, the Veteran testified about his reported heart disability, among other issues. He stated that a doctor diagnosed him with congestive heart failure as secondary to hypertension, and that he was prescribed and continued to take medication for congestive heart failure. The Veteran described his symptoms, including swelling of his hands and feet, shortness of breath, and fatigue. According to a January 2010 letter from Dr. D.H.A., he treated the Veteran for a variety of disabilities, including congestive heart failure. Attached to this letter was an April 2008 statement regarding the Veteran's medical condition. The physician listed diabetes mellitus, type II, chronic obstructive pulmonary disease, hypertension, and arthritis of the spine, as the disabilities resulting in the assessed functional impairment. There was no reference to congestive heart failure or other heart disability, and no clinical findings demonstrating such were attached. In February 2016, the Veteran underwent a VA examination regarding his claimed heart disability. The only diagnosis provided was acute right ventricular failure, which was diagnosed in 2006. After reviewing the evidence of record and administering a clinical evaluation, the examiner opined that there was "no current evidence of coronary artery disease on examination" and "no current evidence of acute or chronic [congestive heart failure] on above examination." According to an April 2019 Disability Benefits Questionnaire (DBQ), the Veteran was evaluated to ascertain the presence of a heart disability. The examiner indicated that the Veteran was diagnosed with coronary artery disease in 2010; with congestive heart failure and valvular heart disease (mitral and tricuspid) on April 16, 2019, the date of an echocardiogram; and with acute right ventricular failure in 2006. The examiner then administered a clinical evaluation, which resulted in all normal findings (with the exception of "trace" bilateral lower extremity edema). An interview-based METs test revealed the presence of dyspnea, fatigue, and angina; the examiner stated that his METS level was between 1 and 3, which was consistent with activities such as eating, dressing, taking a shower, and slow walking for 1 to 2 blocks. The examiner indicated that this was entirely due to the Veteran's heart condition. However, with respect to the April 16, 2019 echocardiogram, the examiner reported that the Veteran's wall motion and thickness were both normal; no abnormal findings were provided. Moreover, the examiner failed to consider or discuss how the Veteran's results were affected by his other disabilities, especially sleep apnea, pulmonary function impairment, sleep apnea, hypertension, diabetes mellitus, type II, and bilateral lower extremity neuropathy. Without specific abnormal findings related to a heart disability and without consideration of the Veteran's other significant disabilities, the Board finds the probative value of the April 2019 DBQ to be severely diminished. In March 2021, a VA examiner reviewed the evidence of record in order to ascertain whether the Veteran experienced any heart disability, to include, but not limited to congestive heart failure, coronary artery disease, and right ventricular heart failure. Ultimately, the examiner opined as follows: There is insufficient evidence to warrant or confirm a diagnosis of heart condition to include congestive heart failure and coronary heart disease. [Service treatment records are] silent for heart condition. Current [diagnosis]: right ventricular heart failure, [October 2007]. Resolved. No functional limitation. [Two-dimension Echocardiogram (March 22, 2021)]: Showed estimated [ejection fraction, 60-65 [percent.] Right heart: The right heart atrium appears normal in size. The right ventricle is grossly normal in size. The right ventricle demonstrates normal systolic function. A. The Veteran's [diagnosis] of right ventricular heart failure noted in [VA examination] in [October 2007] was less likely than not due to a heart condition. More likely due to severe sleep apnea noted during admission and discharge from Southeas[t] Alabama Medical Center in [November 20, 2006 to December 5, 2006] and to moderate restrictive lung disease most likely secondary to obesity and severe obstructive sleep apnea noted in VA exam[ination] (October 21, 2007]. Cardiology consult [on] [April 7, 2007] and [May 25, 2010]...confirmed absence of cardiac condition after review of Veteran's medical record and cardiac work-up. Moreover, several consults with VA [primary care provider] between 2016 to date with recent consult dated [March 03, 2020] likewise reiterated 'There are no documented coronary problems, nothing to support diagnosis-inactive.' B. There is insufficient evidence to warrant or confirm a diagnosis of congestive heart failure. Though there was mention of [diagnosis] of congestive heart failure...by private [primary care provider] Dr. Arnold, Cardiologist Dr. Arnott notes dated [April 2, 2007] and [May 25, 2010]...[were] negative for cardiac condition....Review of [Veterans Benefits Management System] between 2010 to date was silent for cardiac diagnosis. [Two-dimensional echocardiogram on February 3, 2016 and today's [echocardiogram dated March 22, 2021] are both normal. VA PCM notes dated [March 3, 2020] states 'His problems with edema likely related to obesity, sedentary lifestyle, and hepatic cirrhosis. No documented coronary problems. Nothing to support diagnosis inactive.' ... C. There is insufficient evidence to warrant or confirm a diagnosis of coronary artery disease. [Coronary artery disease] was only a diagnosis by history, VA examiner in [April 2010] states that 'VA cardiologist examined Veteran in 2007 and found no cardiac problems. Further states that Veteran is currently treated for blood pressure only'...Review of [Veterans Benefits Management System] between 2010 to date was silent for coronary artery disease. [Two-dimensional echocardiogram dated February 2, 2016] and today's [echocardiogram dated March 22, 2021] are both normal. Moreover, several consults with VA PCM between 2016 to date with recent consult dated [March 3, 2020] likewise reiterated 'There are no documented coronary problems. Nothing to support diagnosis inactive.' (capitalizations omitted) Based on a review of the March 2021 opinion, the Board found that there remained a question as to whether the Veteran experienced a heart disability during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that when the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Specifically, the opinion failed to address the brief period from the date of the Veteran's claim to the date of the Veteran's first VA examination. As such, the claim was remanded in order to obtain another supplemental opinion. In August 2021, a VA examiner rendered a supplemental opinion as to the presence of a heart disability at any point from the date of the Veteran's claim to the date of the first VA examination. After reviewing the evidence of record and the Board's remand directives, the examiner opined as follows: I have reviewed the conflicting medical evidence and am providing the following opinion: The Veteran was provided a Discharge Diagnosis for the hospitalization at Southeast Alabama Medical Center from 30 Nov[ember] 2006 until 5 Dec[ember] 2006 which included Mild right sided heart failure secondary to sleep apnea. However, the Cardiac Echocardiogram, which would have demonstrated any right sided heart issues, was Normal. A Cardiolite Stress test was also Normal. A reviewing VA cardiologist...found no evidence in the hospital records of any cardiac problems during hospitalization. It is the opinion of this examiner that the Discharge Diagnosis of Right sided heart failure secondary to sleep apnea is in error. It is therefore the opinion that it is Less Likely Than Not that the Veteran experienced heart disability, to include but not limited to right ventricular heart failure, from July 9, 2007 (the date of claim) to October 21, 2007 (the first VA examination). (capitalizations in original) The Board finds that the August 2021 supplemental opinion substantially complies with the remand directives and, thus, a remand for corrective action is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Based on the evidence of record, the Veteran understandably believes that he experienced, was diagnosed with, and was treated for a heart disability starting November 2006, just before he submitted this claim. However, the Veteran has significant non-cardiac disabilities, the manifestations of which could reasonably lead him to conclude he has a heart disability (as is evidenced by the medical excerpts attached to Dr. Arnold's August 2007 letter, discussed above). Since his November-December 2006 hospitalization, the evidence is consistently confused as to the presence or nature of the supposed heart disability, changing from none being present to congestive heart failure, to right ventricular failure, and to coronary artery disease. Some of the "diagnoses" were predicted largely, if not wholly, on the Veteran's reported history. However, there is evidence that the Veteran was prescribed medication to treat congestive heart failure; a prescription that was even modified to achieve better results. That said, the Veteran's reported cardiological history is not supported by the associated treatment records or clinical findings. Clinical testing administered throughout the pendency of the appeal consistently yielded normal results. Dr. D.H.A. reviewed the hospitalization records from November and December 2006, and discovered the absence of treatment for any cardiac issues. The medication prescribed to treat the Veteran's "congestive heart failure," appears to be medication to treat his hypertension. Moreover, with the benefit of a retrospective view of the entire body of evidence, the March and August 2021 VA examiner determined that the diagnosis of right ventricular failure was rendered in error, and that there was insufficient evidence to warrant or confirm diagnoses of right ventricular failure, coronary artery disease, or congestive heart failure at any point throughout the pendency of the appeal. Because the March and August 2021 VA examiner's opinions are predicated on the clinical evidence of record, not on the Veteran's reported cardiac history, the Board finds that this is the most probative evidence of record as to the salient issue presented. Schoolman, 12 Vet. App. at 310-11; Evans, 12 Vet. App. at 31; Winsett, 11 Vet. App. at 424-25. To the extent that the Veteran asserts the presence of a heart disability, however diagnosed, at least at some point throughout the pendency of this appeal, the Board finds that the matter of determining the presence of a disability is more suited to the realm of medical, rather than lay expertise. The precise determination as to the presence of a cardiological disability is too complex for a layperson to proffer a competent opinion, especially in the presence of other possibilities. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide competent opinions of such. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Consequently, the Veteran's assertions do not constitute competent evidence of a current diagnosis. Consequently, the most probative evidence of record shows that the Veteran did not have a heart disability at any point during the pendency of this appeal. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against service connection for heart disability, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Prior to August 16, 2010 The Veteran filed this claim on July 9, 2007. 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, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as "one disability" for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). A veteran's age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. As an initial matter, the Board observes that TDIU has been granted on and after August 16, 2010. The Veteran asserts that he is entitled to TDIU prior to August 16, 2010, for his service-connected disabilities. Prior to August 16, 2010, service connection is in effect for two disabilities: pulmonary function impairment, which is assigned a 50 percent rating, and essential hypertension, which is assigned 10 percent rating. However, the Veteran's pulmonary function impairment is associated with his essential hypertension, which means that they are from a common etiology. In determining whether the Veteran meets the schedular criteria, disabilities from a common etiology will be combined. See 38 C.F.R. § 4.16(a). According to 38 C.F.R. § 4.25, when combing a 50 percent rating with a 10 percent rating, a 55 percent rating results and is adjusted upward to 60 percent. Consequently, prior to August 16, 2010, for purposes of establishing TDIU, the Veteran has a single service-connected disability rated at 60 percent, which satisfies the schedular criteria. After a thorough review of the record, the Board finds that the functional limitations imposed by the Veteran's service-connected conditions precludes his performance of substantially gainful employment prior August 16, 2010. During this period, his records clearly indicate the severity of his service-connected disabilities, including medical treatments, medications, and physical limitations. After resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the conclusion that the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment since July 9, 2007. The lay and medical evidence of record makes it at least as likely as not that the Veteran's service-connected conditions have precluded substantial gainful employment consistent with his education and occupational experience since July 9, 2007. Based on the evidence, the Board, as a finder of fact, concludes that the evidence supports a finding that the functional impairment associated with the Veteran's service-connected disabilities is of such nature and severity as to preclude substantially gainful employment prior to August 16, 2010. The Board finds it significant that the Veteran has not worked since November 2005. Prior to November 2005, the Veteran was employed in a variety of labor-intensive positions, including roofer, cabinet maker, butcher, and janitor. Further, the Veteran's highest level of formal eduction was high school. Thus, the Board finds that his disabilities do render the Veteran unable to secure substantially gainful employment since July 9, 2007. In light of the foregoing, the Board concludes that entitlement to TDIU is warranted effective the date of claim, July 9, 2007. Because the evidence shows that the Veteran became unemployable more than a year prior to his date of claim, an effective date prior to that time is not warranted. 38 C.F.R. § 3.400. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sean G. Pflugner, 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.