Citation Nr: 21072285 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 13-25 504 DATE: December 2, 2021 ORDER Entitlement to an initial rating in excess of 10 percent prior to April 21, 2010, for heart disease (IHD), specifically called coronary artery disease, status post myocardial infarction, hereinafter "a heart disorder," is denied. Entitlement to a rating in excess of 30 percent from April 21, 2010, to June 22, 2017, for a heart disorder is denied. Entitlement to a rating of 60 percent, but not higher, from June 23, 2017, to September 9, 2020, for a heart disorder is granted. REMANDED Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) prior to September 10, 2020, is remanded. FINDINGS OF FACT 1. Prior to April 21, 2010, the Veteran's heart disorder required continuous medication, and did not manifest in a workload of greater than five METs but not greater than seven METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope, nor is there evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 2. From April 21, 2010, to June 22, 2017, the Veteran's heart disorder manifested in a workload of greater than five METs but not greater than seven METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; but was not manifested by more than one episode of acute congestive heart failure in the past year, or workload of greater than three METs but not greater than five METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. 3. From June 23, 2017, to September 9, 2020, resolving all doubt in favor of the Veteran, the Veteran's heart disorder manifested in at least one episode of acute congestive heart failure in the past year without chronic congestive heart failure, a workload of three METs or less results that resulted in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to April 21, 2010, for a heart disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.104, Diagnostic Code 7005. 2. The criteria for a rating in excess of 30 percent from April 21, 2010, to June 22, 2017, for a heart disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.104, Diagnostic Code 7005. 3. The criteria for a rating of 60 percent, but not higher, from June 23, 2017, to September 9, 2020, for a heart disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to April 1969, to include service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Huntington, West Virginia. Jurisdiction of this appeal is currently with the RO in St. Petersburg, Florida. This case was most recently before the Board in June 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. The Board notes that in a July 2021 rating decision, the AOJ assigned a rating of 100 percent for heart disorder beginning September 10, 2020. As this decision represents a full grant of the benefits sought with respect to an increased rating for the appeal period beginning September 10, 2020, such period is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Increased Rating Heart Disorder The Veteran asserts that he is entitled to higher ratings for his heart disorder as his symptoms are worse than those contemplated by the currently assigned ratings. Specifically, the Veteran asserted that his heart condition resulted in unemployability, and prevented any form of physical labor due to being out of breath and fatigue; additionally, he asserts that his heart disorder requires continuous medication for treatment. See VA Form 9, August 27, 2013. Moreover, the Veteran's representative asserts that he is entitled to higher ratings based on the disability benefits granted by the Social Security Administration. See Appellate Brief, December 16, 2013. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As of November 14, 2021, changes have been implemented to the cardiovascular system rating criteria. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that amended regulation can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Id. Here, since the Board is assessing the Veteran's disability prior to September 10, 2020, the amended regulation that went into effect on November 14, 2021, cannot be applied to the instant case. Essentially, an award based on the amended regulations may not be made effective before the effective date of the regulation change. Here, the Veteran's heart disorder is assigned a 10 percent rating prior to April 21, 2010, and a 30 percent rating from April 21, 2010, to September 9, 2020, under 38 C.F.R. § 4.104, Diagnostic Code 7005, which contemplates arteriosclerotic heart disease (coronary artery disease). Prior to the regulatory change, pursuant to Diagnostic Code 7005, a 10 percent rating is assigned for a workload of greater than seven METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is warranted for a workload of greater than five METs but not greater than seven METs 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 is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of 30 to 50 percent. Finally, a 100 percent rating is justified for chronic congestive heart failure, or; workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of less than 30 percent. For rating diseases of the heart, 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. 38 C.F.R. § 4.104, Note 2. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of 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). Turning to the evidence, the Veteran was afforded a VA examination in April 2007. At that time, the Veteran reported he had been awarded Social Security disability benefits since November 2005, following his heart surgery. Prior to that, he worked as a coal miner for 23 years and worked in a factory thereafter. The Veteran denied angina and chest pain. He had a cardiac catherization that did not show any blockage and had a pacemaker placed since 2005. The Veteran was afforded a VA examination in April 2010. At that time, his heart disorder was considered "stable." He was prescribed medications to treat his heart disorder. There was no history of cardiac trauma nor cardiac neoplasm. The Veteran did not have a history of myocardial infarction, rheumatic fever, valvular heart disease including prosthetic valve, other heart disease, angina, dizziness, nor syncope. He endorsed hypertension, heart rhythm disturbance, congestive heart failure, fatigue, and dyspnea. Continuous medication was required for control of hypertension and heart disorder. The Veteran did not have chronic congestive heart failure; he had zero episodes of heart failure in the past 12 months. Dyspnea was present on moderate exertion. Stress and exercise tests were not performed in April 2010 because they were medically contraindicated. Estimated activity level in METs was more than 5 and up to 7. Specifically, the Veteran could carry a 45-pound object and walk at a pace of 4 miles an hour. The record showed left ventricle dysfunction by ejection fraction test. Chronic congestive heart failure was not present. There was not more than one episode of acute chronic heart failure in the past year. There was not active injection with valvular heart disease. The heart was a normal size as determined by echocardiogram. Ejection fraction was greater than 50 percent for the left ventricle. The April 2010 VA examiner concluded that the Veteran's examination showed abnormal test results, and changes were noted as follows: normal left ventricle in size and function with ejection fraction of around 60 percent; no left ventricle hypertrophy; normal diastolic function; dilated left artery; trace mitral regurgitation; trace tricuspid regurgitation; normal right sided pressures but enlarged right artery and right ventricle; moderate sized atrial septal defect; secundum defect with left to right shunt; no pericardial effusion; and as compared to tracing in December 2004, his left ventricle ejection fraction had significantly improved. It was noted at his April 2010 VA examination that the Veteran was a coal miner, not currently employed as of retirement in 2004, due to medical and/or physical problems. Specifically, the examiner noted the Veteran was awarded Social Security Disability benefits due to his heart. The examiner diagnosed congenital heart disease with associated arrythmia, without evidence of IHD. The Veteran was shown to have stopped working due to his heart and associated residuals. Effects on occupational activities included lack of stamina, weakness, and fatigue. He had a moderate effect on chores, shopping, exercise, and a severe effect on sports due to decreased stamina. Private treatment records from December 2007 to November 2009 show that the Veteran denied dyspnea and chest pain. The Veteran was afforded a VA examination in January 2013. At that time, the Veteran denied chest pain. He had a cardiac catherization which did not show any blockage. The Veteran's heart disorder required continuous medication for control. He did not have a myocardial infarction. He did not have congestive heart failure. The Veteran had arrhythmia and atrial fibrillation that was constant. He had congenital atrial septal defect and repair. The Veteran did not have pericardial adhesions. Ejection fraction of 55 percent with moderate concentric left ventricle hypertrophy was found. In a March 2013 VA examination addendum report, the Veteran did not have a history of stress test, and interview based METs showed dyspnea on exertion after walking one quarter of a mile, but the Veteran was able to walk at least one mile; shortness of breath after two flights of steps, without problems on the first floor. The examiner approximated METs of 5-7, compatible with his recent echocardiogram report. June 2017 private treatment records indicate the Veteran reported dyspnea and a history of shortness of breath. The Veteran was admitted to the hospital as a congestive heart failure exacerbation. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that his heart symptoms are manifestly different than those reported at the above-mentioned VA examinations or otherwise indicated above. Based on the foregoing, the Board finds that an initial rating in excess of 10 percent is not warranted for a heart disorder prior to April 21, 2010. In this regard, the April 2007 VA examiner indicated that the Veteran denied angina, and chest pain; he was shown to have a cardiac catherization that did not show a blockage. Continuous medication was required. Simply stated, the evidence does not show that the Veteran had a workload of greater than 5 METs but not greater than 7 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope. Notably, the Veteran denied symptoms of angina and chest pain upon examination. Therefore, the Board finds that the criteria for the next higher rating of 30 percent for his heart disorder are not shown for the period on appeal prior to April 21, 2010. Based on the foregoing, the Board finds that a rating in excess of 30 percent is not warranted for a heart disorder from April 21, 2010, to June 22, 2017. In this regard, the April 2010 and January 2013 VA examiners indicated that the Veteran had a workload of greater than 5 METs but not greater than 7 METs, with dyspnea and fatigue. Additionally, the Veteran reported shortness of breath with exertion and decreased stamina. However, the Board notes that a next higher 60 percent rating is not supported by the evidence. Specifically, the Veteran has not been shown to have more than one episode of acute congestive heart failure in the past year, or; workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; LVEF of 30 to 50 percent. Notably, at his January 2013 VA examination, the Veteran was not shown to have congestive heart failure, and a March 2013 VA addendum report showed approximated interview-based METs of greater than 5 but not greater than 7. Therefore, the Board finds that the criteria for the next higher rating of 60 percent for his heart disorder are not shown for the period on appeal from April 21, 2010, to June 22, 2017. Based on the foregoing, the Board finds that a rating of 60 percent, but not higher, is warranted for a heart disorder from June 23, 2017, to September 9, 2020. In this regard, June 2017 private treatment records indicate the Veteran experienced, and was hospitalized, for an episode of congestive heart failure exacerbation. Specifically, the June 2017 private treatment records indicate the Veteran was admitted for, and diagnosed with, congestive heart failure exacerbation. The Board affords the Veteran the benefit of the doubt with regard to his symptomatology, as the record shows that the Veteran's heart condition resulted in significant impairment, that manifested in at least one episode of congestive heart failure exacerbation in June 2017. Therefore, resolving all doubt in favor of the Veteran, the Board finds that a 60 percent rating is warranted for the appeal period from June 23, 2017, to September 9, 2020. However, a rating higher than 60 percent for a heart disorder is not warranted prior to September 10, 2020. The record does not show, and the Veteran has not alleged, chronic congestive heart failure, a workload of three METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or LVEF of less than 30 percent. Rather, the VA examination reports all indicate a greater workload as indicated above. Further, the Veteran was not noted to have a LVEF of less than 49 percent at any time during the appeal period. Therefore, the Board finds that an initial rating in excess of 60 percent for coronary artery disease is not warranted for any of the periods on appeal. 38 C.F.R. § 4.104, Diagnostic Code 7005. The Board acknowledges the Veteran's statement that his heart disorder is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for higher ratings than already assigned have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his heart disorder. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has also considered whether additional staged ratings under Hart, supra, is appropriate for the Veteran's heart disorder. However, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings for his heart disorder is not warranted. Further, the Veteran and her representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that the evidence does not support the award of an initial rating higher than 10 percent prior to April 21, 2010, or higher than 30 percent from April 21, 2010, to June 22, 2017, for a heart disorder. To that extent, the appeal is denied. In denying these higher ratings, the Board finds that the preponderance of the evidence is against such aspect of the Veteran's claim. Therefore, in denying an increased rating, the benefit of the doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, supra. However, the Board finds that the evidence does support the award of a 60 percent rating, but not higher, from June 23, 2017, to September 9, 2020, for a heart disorder. To that extent, the appeal is granted. REASONS FOR REMAND Entitlement to a TDIU prior to September 10, 2020 The Board notes that the issue of entitlement to a TDIU has been raised by the record and has been added to the appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). Specifically, the Veteran has contended that he has been unable to work since 2004 as a result of his heart disorder. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A claim for a TDIU is generally inferred wherever a veteran asserts that their service-connected disabilities preclude them from obtaining or maintaining substantially gainful employment. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940, and the originating agency has not adjudicated the TDIU issue. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. The matters are REMANDED for the following action: Provide the Veteran with notice of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. Thereafter, the agency of original jurisdiction should conduct any necessary development in regard to the Veteran's TDIU claim. M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.