Citation Nr: 21075456 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-56 149 DATE: December 20, 2021 ORDER New and material evidence has been submitted to reopen the claim for service connection for obstructive sleep apnea (OSA), the claim to reopen is granted. From November 1, 2012 to February 2, 2017, entitlement to a disability rating higher than 60 percent for arteriosclerotic heart disease is denied. From February 2, 2017 to June 12, 2018, entitlement to a disability rating of 100 percent for arteriosclerotic heart disease is granted. From November 1, 2012 to February 2, 2017, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for OSA is remanded. FINDINGS OF FACT 1. The January 2012 rating decision that denied service connection for OSA was final. 2. The evidence received since the January 2012 rating decision is not cumulative or redundant, and raises a reasonable possibility of substantiating the claim denied. 3. From November 1, 2012 to February 2, 2017, the Veteran's arteriosclerotic heart disease did not cause left ventricular dysfunction with an ejection fraction of less than 30 percent, did not show METs of 3 or less due solely due to the service-connected heart disability, and did not show chronic congestive heart failure. 4. From February 2, 2017, the Veteran's arteriosclerotic heart disease showed chronic congestive heart failure. 5. From November 1, 2012 to February 2, 2017, giving the appellant the benefit of the doubt, the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service for OSA. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. From November 1, 2012 to February 2, 2017, the criteria for a rating higher than 60 percent for arteriosclerotic heart disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 3. From February 2, 2017, the criteria for a 100 percent rating for arteriosclerotic heart disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 4. Giving the appellant the benefit of the doubt, from November 1, 2012 to February 2, 2017, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1965 to April 1985. The Veteran died in June 2020. The appellant is the Veteran's surviving spouse. This matter is on appeal from a December 2013 rating decision, which denied reopening the claim for service connection for OSA. For the arteriosclerotic heart disease claim, the Regional Office (RO) granted a 100 percent disability rating from August 22, 2012 and a 30 percent disability rating from November 1, 2012. As the 100 percent disability rating granted prior to November 1, 2012 was a full grant of the claim, only the period from November 1, 2012 is before the Board. In a September 2018 rating decision, the RO granted a 60 percent disability rating from November 1, 2012 and a 100 percent disability rating from June 12, 2018. As such, the time period on appeal from the December 2013 rating decision was for the period from November 1, 2012 to June 12, 2018. The December 2013 rating decision also denied a service connection claim for depression. In a September 2017 rating decision, the RO granted service connection for depression and that matter is not appealed to the Board. In August 2021, the appellant had a hearing before the undersigned Veterans Law Judge. In this case, the Veteran had previously been awarded a 100 percent schedular evaluation for arteriosclerotic heart disease from June 12, 2018. As seen below, the Board has granted a 100 percent disability rating for arteriosclerotic heart disease, from February 2, 2017. As such, the TDIU period has been altered to reflect that grant (from November 1, 2012 to February 2, 2017). Further, the Veteran also was service connected for depression, a generalized seizure disorder, tinnitus, and a left chest pacemaker scar. The combined evaluation for those disabilities was less than 60 percent during the rating period on appeal. 38 C.F.R. § 4.25. Thus, the Veteran is not eligible for consideration of special monthly compensation from February 2, 2017. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). As such, from February 2, 2017, consideration of TDIU no longer serves any useful purpose. As there remains no case or controversy concerning whether the Veteran is entitled to the benefit sought, the appeal with respect to the claim for TDIU from February 2, 2017 is moot and must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994). 1. Whether new and material evidence has been submitted to reopen the claim for service connection for OSA. The RO denied service connection for OSA in a January 2012 rating decision. This decision became final in January 2013. The evidence submitted after January 2012, including lay statements made during the August 2021 Board hearing, relates to unestablished facts necessary to substantiate this service connection claim. Therefore, the Board finds that the OSA claim should be reopened. 2. From November 1, 2012 to June 12, 2018, entitlement to a disability rating higher than 60 percent arteriosclerotic heart disease. The appellant essentially contends that the Veteran was entitled to a higher rating because his symptoms were more severe than indicated by a 60 percent disability rating. During her August 2021 Board hearing, she noted that the Veteran was unable to perform chores such as putting on bed sheets and spent a lot of time in "his little cave and up and down the hall a little bit." He was unable to go places due to being too dizzy and would take breaks going up and down the stairs. In his January 2014 notice of disagreement, the Veteran claimed that a 100 percent disability rating was warranted because his arteriosclerotic heart disease was a permanent condition, and he had a pacemaker. Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Under DC 7005, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation 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 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 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. Id. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase "30 to 50 percent" means 30 percent through 50 percent. Id. at 380. For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382. As previously noted, the next higher 100 percent disability rating would be warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Prior to his June 2020 death, and during the applicable appeal period from November 1, 2012 and June 12, 2018, the Veteran underwent multiple VA examinations, including in November 2013, June 2016, and April 2017. None of those VA examinations made findings consistent with a 100 percent disability rating. The November 2013 VA examination did not find congestive heart failure. His left ventricular ejection fraction (LVEF) was 50-55 percent, significantly higher than 30 percent. Although interview based METs was found to be consistent with 1-3, the examiner indicated that his METs limitation as only 50 percent due to the heart condition. The estimated METs level solely due to cardiac condition was 3-5, which is also not consistent with a 100 percent disability rating. The examiner further made clear that ejection fraction was a better indicator of current cardiac function due to the Veteran having other conditions that impaired METs. The June 2016 VA examiner made similar findings, with a LVEF of 50 to 55 percent and no congestive heart failure. The interview-based METS estimate was higher than 3 and up to 5 METs, with METs based solely to the cardiac conditions being over 7 to 10 METS. The April 2017 VA examiner also similarly found no congestive heart failure. LVEF was 60 percent. Interview based METs test was over 3 METS to 5 METS, based solely on the heart condition. The Veteran also submitted a July 2018 private DBQ. On the DBQ, the private examiner, Dr. O.M.A., indicated the Veteran did not have congestive heart and did not provide the results of an exercise stress test form June 2018 or an interview METs test, though he indicated that the Veteran's heart condition limited METs only by 80 percent. The provider also attached a report that indicated a report that indicated that the Veteran was able to perform 3.6 METs and a medical record that noted a new diagnosis of chronic congestive heart failure. As previously noted, effective January 12, 2018 (the date of the private DBQ from Dr. O.M.A.) the Veteran is in receipt of a 100 percent disability rating for his arteriosclerotic heart disease, based on the January 2018 DBQ being the first report of the Veteran having chronic congestive heart failure. The Board finds, however, that a February 2, 2017 letter from Dr. R.J.B. noted that the Veteran had a METs of 4.5 and LVEF of 45-50 percent. Dr. R.J.B. further noted that the Veteran had chronic congestive heart failure, which is actually the first indication of such a symptom of the arteriosclerotic heart disease. As such, from February 2, 2017, the Board finds that a 100 percent disability rating for arteriosclerotic heart disease is warranted. From November 1, 2012 to February 2, 2017, as explained above, there was no VA examination evidence supportive of a 100 percent disability rating. Similarly, VA and private medical records are silent as to such a diagnosis of congestive heart failure prior to February 2, 2017. Such records also do not indicate other findings consistent with a 100 percent disability rating. For example, a June 2017 VA cardiology consult to establish care noted a January 2017 ETT indicating 13.2 METs and an August 2012 echo indicating a 55 percent ejection fraction. A private January 2017 exercise stress test, by Dr. R.J.B., found 13.2 METs achieved, which was "excellent for the patient's age." The examiner found a normal test with good exercise tolerance. The Board has considered the appellant's lay testimony during her August 2021 Board hearing, to include the Veteran's limitations on physical abilities. She is generally competent to report readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant, however, was not clear whether such limitations occurred prior to June 12, 2018 when the Veteran was already in receipt of a 100 percent disability rating. The evidence of record is not supportive of such a level of limitation prior to February 2, 2017. For example, during her hearing she claimed that the Veteran was not capable of even going to church, but VA medical records, such as one from March 2016 indicated that the Veteran enjoyed dancing, walking his dog, bible study and going to church two times a week. The appellant also did not address how the Veteran's non-service-connected disorders also interfered with his medical condition. Considering all relevant evidence of record, the Board finds that the VA and private medical evidence, to include the VA examinations, that directly addressed the questions of whether the Veteran had congestive heart failure, the METs level at which the Veteran's symptoms develop, and the level of the left ventricular dysfunction with an ejection fraction do not support a higher rating prior to February 2, 2017. Accordingly, the Board concludes that the Veteran's arteriosclerotic heart disease prior to February 2, 2017 did not meet the level of a 100 percent disability rating. As explained above, a higher 100 percent rating is not warranted unless there is chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. The VA examinations, VA medical records, and private medical records prior to February 2, 2017 did not show chronic congestive heart failure. Even at the time of the June 2018 DBQ, there was no evidence of symptoms appearing at 3 METs or less solely due to the service-connected heart disability, or left ventricular dysfunction with an ejection fraction of less than 30 percent. Thus, the Board concludes that the Veteran's arteriosclerotic heart disease did not meet the criteria corresponding to a higher 100 percent rating prior to February 2, 2017. From November 1, 2012 to February 2, 2017, a disability rating higher than 60 percent for arteriosclerotic heart disease is denied. From February 2, 2017, a disability rating of 100 percent is granted. 3. From November 1, 2012 to February 2, 2017, entitlement to a TDIU. Giving the appellant the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, from November 1, 2012 to February 2, 2017. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The Veteran was service connected for multiple disabilities, including arteriosclerotic heart disease (60 percent), depressive disorder (30 percent), generalized seizure disorder (10 percent), tinnitus (10 percent), and left chest pacer scar (noncompensable), for a combined rating of 70 percent. During the August 2021 Board hearing, the appellant claimed that the Veteran had previously worked a security job and then the William Beaumont Medical Army Hospital, before he was medically retired. He worked in a medical records department, where he had to move big batches of files, which she claimed caused a lot of dizziness and shortness of breath. During service, he worked in a dental department. His highest level of education was a GED. Per his November 2016 TDIU application, the Veteran reported last working at the William Beaumont AMC in August 2007. A May 2007 Social Security Administration (SSA) determination indicated that the Veteran's primary diagnosis was recurrent rectal cancer, which was not service connected. There was no secondary diagnosis noted. SSA records indicated that the Veteran had last worked at a medical file clerk and noted multiple physical requirements for such employment. In a June 2016 VA examination, a VA medical opinion provider for the arteriosclerotic heart disease, noted that the Veteran experienced shortness of breath and fatigue during any light work. The April 2017 VA examination made similar findings. The Board finds that there is evidence both supportive and not supportive to the Veteran's claim. Importantly, the determination of whether at TDIU is warranted is a legal one, not a medical one. The realistic chances of the Veteran finding and maintaining substantially gainful employment due to his service-connected disabilities was low. Given the Veteran's physical limitations, in conjunction with his background (including educational history and past employment in only physical and manual labor activities) and giving the appellant the benefit of the doubt, the Board finds that from November 1, 2012 to February 2, 2017 the Veteran's service-connected disabilities precluded most employment. REASONS FOR REMAND 4. Entitlement to service connection for OSA is remanded. During the August 2021 Board hearing, the appellant claimed that the Veteran's OSA developed during service and provided lay statements to support her contention. As a medical opinion has not been obtained to address this claim, one should be obtained. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from a medical professional familiar with OSA. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is OSA at least as likely as not related to service, including reports that it began during service. See lay statements, to include the August 2021 Board hearing testimony and January 2014 notice of disagreement. Is OSA at least as likely as not proximately due to OR aggravated, i.e., worsened beyond its natural progression, by the service-connected arteriosclerotic heart disease or the service-connected depression? (Continued on the next page) Provide a rationale to support the opinion(s). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Lindio 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.