Citation Nr: 21068397 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-46 405 DATE: November 10, 2021 ORDER Entitlement to an effective date prior to September 30, 2014 for the granting of service connection for coronary artery disease (CAD) is dismissed. Entitlement to an effective date prior to September 30, 2014 for the granting of service connection for cardiac bypass scars is dismissed. Entitlement to an evaluation in excess of 30 percent disabling for service-connected coronary artery disease prior to December 2, 2016 is denied. Entitlement to an evaluation of 60 percent disabling for service-connected coronary artery disease beginning December 2, 2016 is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 2, 2019 is remanded. FINDINGS OF FACT 1. In a signed statement dated February 12, 2021, the Veteran, through his representative, withdrew his claim seeking entitlement to an effective date prior to September 30, 2014 for the granting of service connection for coronary artery disease. 2. In a signed statement dated February 12, 2021, the Veteran, through his representative, withdrew his claim seeking entitlement to an effective date prior to September 30, 2014 for the granting of service connection for cardiac bypass scars. 3. Prior to December 2, 2016, the Veteran's heart disability has manifested by a workload of five to seven METs resulting in dyspnea and fatigue. 4. Beginning December 2, 2016, the Veteran's heart disability has manifested by a workload of three to five METs resulting in dyspnea and fatigue. 5. The Veteran has been in receipt of a 100 percent disability rating for coronary artery disease beginning May 2, 2019. CONCLUSIONS OF LAW 1. The criteria for dismissal of entitlement to an effective date prior to September 30, 2014 for the granting of service connection for coronary artery disease have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of entitlement to an effective date prior to September 30, 2014 for the granting of service connection for cardiac bypass scars have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to an evaluation in excess of 30 percent disabling for service-connected coronary artery disease prior to December 2, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005. 4. The criteria for entitlement to an evaluation of 60 percent disabling for service-connected coronary artery disease beginning December 2, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1969 to April 1971 with service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the increased rating claim on appeal. Rice, 22 Vet. App. 447. 1. Entitlement to an effective date prior to September 30, 2014 for the granting of service connection for coronary artery disease. 2. Entitlement to an effective date prior to September 30, 2014 for the granting of service connection for cardiac bypass scars. The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In a February 2021 Correspondence, the Veteran, through his representative, withdrew his appeal as to the issues of entitlement to an effective date prior to September 30, 2014 for the granting of service connection for coronary artery disease and cardiac bypass scars. Thus, there remain no allegations of errors of fact or law for appellate consideration as to that issue. As such, the Board does not have jurisdiction to review the appeal, and the issues of entitlement to an effective date prior to September 30, 2014 for the granting of service connection for coronary artery disease and cardiac bypass scars are dismissed. 3. Entitlement to an evaluation in excess of 30 percent disabling for service-connected coronary artery disease prior to December 2, 2016. 4. Entitlement to an evaluation of 60 percent disabling for service-connected coronary artery disease beginning December 2, 2016. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's heart disease is rated under Diagnostic Code 7005. 38 C.F.R. § 4.104. The Veteran's heart disease is rated at 30 percent beginning September 30, 2014 and 100 percent beginning May 2, 2019. Under DC 7005, a 30 percent rating is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned with more than one episode of acute congestive heart failure in the past year; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure (CHF); or when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005. During the November 2015 VA examination, the Veteran reported a heart attack and bypass surgery in October 2003. He stated that he still has high blood pressure, high cholesterol, and episodes of shortness of breath and dizziness with certain levels of physical activity. The Veteran reported that he takes continuous medication to treat his condition. The examiner noted diagnoses of coronary artery disease, cardiomyopathy, and aortic aneurysm. The examiner noted that the Veteran has not had congestive heart failure and has a left ventricular ejection fraction (LVEF) of 55-60 percent. Interview-based METs test resulted in five to seven METs with symptoms of dyspnea and dizziness. The examiner further stated that METs level provided is due solely to the Veteran's heart condition. In December 2016, a VA examination was conducted where the Veteran reported more exercise limitations, including being unable to walk more than six blocks before experiencing dyspnea and fatigue. Diagnostic testing showed an LVEF at 73 percent and interview based METs was noted at three to five METs with symptoms of dyspnea and fatigue. The examiner stated that the Veteran's METs levels are not solely due to his heart condition and estimated that his METs level solely due to his heart condition would be five to seven METs. The examiner's rationale included "as a vascular surgeon, in my expert opinion, a stable, cardiac asymptomatic, re-vascularized CAD/IHD patient would have METs of at least greater than five to seven METs." During the January 2021 VA examination, diagnostic testing showed an LVEF at 54 percent and interview based METs was noted at one to three METs with symptoms of dyspnea and fatigue. The examiner noted that the Veteran's METs level is solely due to his heart conditions. The Board notes that the December 2016 VA examiner was able to separate the impact of the Veteran's comorbid disabilities from those of his service-connected heart disability. However, the examiner's rationale discusses the average person with coronary artery disease rather than the Veteran specifically. Therefore, the Board finds the rationale inadequate. When it is not possible to separate the effects of a service-connected disorder and a nonservice-connected disorder, the principle of reasonable doubt dictates that such signs and symptoms must be attributed to the service-connected disorder. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (medical evidence is required to differentiate between symptomatology attributed to a nonservice-connected disability and a service-connected disability). Accordingly, the Board resolves any doubt as to the etiology of the Veteran's workload capacity and attributes his workload limitation to his service-connected heart disability. As a result, the December 2016 VA examination establishes the criteria for a 60 percent rating for the service-connected heart disability. Based on facts found, December 2, 2016, that is, the date the Veteran asserted worsening of his heart condition, marked the first point that it became factually ascertainable that the Veteran's service-connected heart disability worsened to its current level. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (stating that, in determining when an increase is "factually ascertainable," a date should not be assigned mechanically from the date of an examination, but from the date that the increase in disability can be first factually ascertainable). Thus, the evidence shows that since December 2, 2016, the Veteran's heart disability has manifested by a workload of three to five METs resulting in dyspnea and fatigue. As a result, effective December 2, 2016, a 60 percent rating for the service-connected heart disability is warranted. Prior to December 2, 2016, the Veteran's heart disability manifested by a workload of five to seven METs. The competent and credible medical evidence of record reveals that his LVEF remained above 50 percent; at its lowest it was assessed as 55-60 percent during that period. Interview-based METs testing reflected a workload of greater than five but not greater seven METs. There was no evidence of congestive heart failure, cardiac hypertrophy or dilatation was shown on electrocardiogram, echocardiogram, or X-ray. The findings during this period reflect the symptomatology of a 30 percent disability rating under Diagnostic Codes 7005. Additionally, the Veteran is in receipt of a 100 percent rating, the maximum schedular rating, beginning May 2, 2019 for his CAD based on the January 2021 VA examination. Based on facts found, May 2, 2019, that is, the date the Veteran submitted a VA Form 8940 asserting a worsening of his heart disability, marked the first point that it became factually ascertainable that the Veteran's service-connected heart disability worsened to its current level. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). The Board acknowledges that the Veteran contends that his CAD is more severe than currently rated throughout the appeal. In this regard, the Veteran is certainly competent to report his symptoms. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (veteran is competent to testify as to symptomatology capable of lay observation). However, the rating criteria contemplate a showing of very specific findings (congestive heart failure, METs, or LVEF), the nature of which are often identified only by clinical tests, x-ray films and CT scans. Accordingly, a lay person such as the Veteran lacks the competency to accurately assess the presence or absence of such symptoms, and as such, the Board attaches greater probative weight to the clinical findings of skilled professionals, as opposed to lay statements of symptomatology, as pertains to this particular clinical finding. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In sum, the Board finds that a rating in excess of 30 percent prior to December 2, 2016 and a rating in excess of 60 percent from December 2, 2016 to May 2, 2019 is not warranted. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 2, 2019 is remanded. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice, 22 Vet. App. at 453-54. Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), the claim remains on appeal. Here, in a June 2021 rating decision, the RO increased the rating of the Veteran's coronary artery disease to 100 percent, effective may 2, 2019, and denied entitlement to a TDIU. The Veteran asserts that his service-connected heart disability precludes him from obtaining or following substantially gainful employment prior to May 2, 2019. On his May 2019 TDIU application, the Veteran reported that he last worked full-time on September 21, 2012 but his disability affected full-time employment beginning September 12, 2011. He reported that he worked 25 hours per week as a driver from August 2017 to May 2018 with the highest gross income of 1200 dollars per month. The Veteran also reported currently working 25 hours per week as a driver for Enterprise beginning in June 2018 with the highest gross income of 1020 dollars per month. See VA Form 21-8940, May 2019. On his January 2021 TDIU application, the Veteran reported that he last worked full-time on September 12, 2011. He reported that he worked 40 hours per week as airport security from September 2002 to September 2011 with the highest gross income of 5750 dollars per month. The Veteran noted that he lost six months of work during that time due to illness. The Veteran also stated that he has a lifting limit of 45 pounds and is in the age group to not allow him to work because of Covid-19. See VA Form 21-8940, January 2021. Medical treatment records note that the Veteran is working for Mercedes Benz or Enterprise in September 2017 and April 2019, respectively. Given the inconsistencies in the record, and the benefit of the doubt doctrine in mind, the Board finds remand necessary for additional development and to allow the Veteran the opportunity to clarify his work history. The matters are REMANDED for the following action: Give the Veteran an opportunity to clarify his work history and submit an updated VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) in addition to any additional evidence that is relevant with regard to his claim for a TDIU, to include the impact of his service-connected disabilities, and in particular, his heart disability, on his ability to work. Notify the Veteran that the failure to complete and submit an updated VA Form 21-8940 clarifying his employment history may result in the denial of the benefit sought. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, 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.