Citation Nr: 21076663 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-41 924 DATE: December 27, 2021 ORDER Entitlement to an effective date earlier than March 14, 2017, for the award of service connection for non-Hodgkin's lymphoma is denied. An initial compensable disability rating for non-Hodgkin's lymphoma is denied. A compensable disability rating for service-connected hypertension is denied. From March 31, 2014, to December 9, 2016, an initial disability rating of 30 percent, but no higher, for service-connected coronary artery disease is granted. From December 9, 2016, an increased disability rating of 60 percent, but no higher, for service-connected coronary artery disease is granted. REMANDED Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. The earliest effective date entitlement arose for service connection for non-Hodgkin's lymphoma was on March 14, 2017. 2. During the period on appeal, the Veteran's non-Hodgkin's lymphoma was not an active disease, the Veteran was not engaged in a treatment phase, nor was his non-Hodgkin's lymphoma indolent and in a non-contiguous phase of low grade. 3. During the period on appeal, the Veteran's hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Also, the Veteran did not have both a history of diastolic pressure predominantly 100 or more and require continuous medication for control. 4. From March 31, 2014, to December 9, 2016, the Veteran's coronary artery disease resulted in dyspnea, fatigue, angina, dizziness, or syncope at a workload greater than 5 METs but less than 7 METs. Metabolic equivalent (MET) testing showed the Veteran did not develop symptoms of dyspnea, fatigue, angina, dizziness, or syncope at a workload of greater than 3 METs but not greater than 5 METs, and there was no evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent, nor was there evidence of active congestive heart failure. 5. From December 9, 2016, the Veteran's coronary artery disease resulted in dyspnea, fatigue, angina, dizziness, or syncope at a workload of greater than 3 METs but not greater than 5 METs and/or resulted in left ventricular dysfunction with an ejection fraction of 30 to 50 percent. MET testing showed the Veteran did not develop symptoms of dyspnea, fatigue, angina, dizziness, or syncope at a workload of 3 METs or less, and the evidence did not show chronic congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date for the award of service connection for non-Hodgkin's lymphoma have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). 2. The criteria for a compensable disability rating for service-connected non-Hodgkin's lymphoma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14.7, 4.21, 4.31, 4.117, Diagnostic Code 7715. 3. The criteria for a compensable rating for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code 7101. 4. From March 31, 2014, to December 9, 2016, the criteria for an initial disability rating of 30 percent, but no higher, for service-connected coronary artery disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 5. From December 9, 2016, the criteria for an increased disability rating of 60 percent, but no higher, for service-connected coronary artery disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1976 until his honorable retirement in January 1995. He was stationed at Camp Lejeune, North Carolina, between 1984 and 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from separate decisions by a Regional Office of the United States Department of Veterans Affairs (VA): An October 7, 2014, decision that denied an increased disability rating for service-connected hypertension. A July 18, 2017, decision that assigned a 30 percent disability rating for service-connected coronary artery disease effective April 17, 2017; and an August 1, 2017, decision that assigned an initial disability rating of 10 percent for service-connected coronary artery disease for the period from March 31, 2014, to April 16, 2017. An August 1, 2017, decision that assigned an initial noncompensable disability rating for service-connected non-Hodgkin's lymphoma effective March 14, 2017. Significant to this appeal, the Veteran filed a claim for service connection for bilateral upper and lower peripheral neuropathy, which he claimed were residuals of his non-Hodgkin's lymphoma. In a December 19, 2017, decision, a VA Regional Office granted service connection for bilateral lower and left upper peripheral neuropathy. The Veteran filed a notice of disagreement as to the assigned effective dates, which the VA Regional Office altered in a November 13, 2019, decision, assigning effective dates of March 14, 2017, for each disability. Still, the Veteran disagreed with the assigned effective dates and filed VA Form 10182, Notice of Disagreement, under the VA Claims and Appeals Modernization Act (AMA), 84 Fed. Reg. 2449 (Feb. 7, 2019). His assertion is that the award of service connection for his peripheral neuropathy should be effective December 2, 2016, the date he filed his claim for service connection, not March 14, 2017. As VA has assigned March 14, 2017, as the effective date for service connection for his non-Hodgkin's lymphoma, he asserts that VA has incorrectly restricted the effective date for his peripheral neuropathy to the same date. This is to say, the Veteran believes he is entitled to an earlier effective date for his non-Hodgkin's lymphoma, and if the Board agrees, then he is consequently entitled to an earlier effective date for his peripheral neuropathy. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). The VLJ took testimony in both appeal dockets: (1) the Legacy appeal docket, which encompassed the Veteran's claims for increased ratings for his service-connected hypertension, coronary artery disease, and non-Hodgkin's lymphoma, and a claim for an earlier effective date for his non-Hodgkin's lymphoma, and (2) the AMA appeal docket, which encompassed claims for earlier effective dates for his service-connected peripheral neuropathy disabilities. The Board, via the same VLJ, is simultaneously issuing decisions in both appeal dockets to avoid unnecessary confusion as the appealed issues are intertwined as just discussed. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When 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). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. 1. Entitlement to an effective date earlier than March 14, 2017, for the award of service connection for non-Hodgkin's lymphoma is denied. Effective Dates Generally, the effective date of an award for compensation based on an original claim, a reopened claim, or a claim for increase, "shall be fixed in accordance with the facts found," but may not be earlier than the date of application or the date the entitlement to service connection arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Section 5110(g), however, clarifies section 5110(a): "[W]here compensation is awarded pursuant to any act or administrative issue, the effective date of such [an] award shall [] not be any earlier than the effective date of the act or administrative issue." 38 U.S.C. § 5110(g). Analysis On April 19, 2014, the Veteran filed various documents with VA in support of a claim for service connection for non-Hodgkin's lymphoma, which constituted an informal claim for benefits. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also 38 C.F.R. § 3.155(a) (2014) (defining "informal claim"). He submitted a formal claim for service connection on April 21, 2014. He based his claim on his active military service at Camp Lejeune, asserting direct exposure to contaminants in the water supply. On August 1, 2017, a VA Regional Office granted service connection and assigned a noncompensable disability rating effective March 14, 2017. On appeal, the Veteran asserts service connection should be effective as of April 19, 2014, the date he filed his informal claim for service connection. For the reasons that follow, the Board finds that the earliest effective date that can be awarded for the Veteran's service-connected non-Hodgkin's lymphoma is March 14, 2017. Following revelations that the drinking water at Marine Corps Base Camp Lejeune in North Carolina had for decades been contaminated by solvents and other chemicals, Congress passed, and the President signed, the Honoring America's Veterans and Care for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (codified in scattered sections of 38 U.S.C.) (the "Camp Lejeune Act"). Under the Camp Lejeune Act, "a veteran who served on active duty in the Armed Forces at Camp Lejeune, North Carolina, for not fewer than 30 days during the period beginning on August 1, 1953, and ending on December 31, 1987, is eligible for hospital care and medical services" for specified illnesses or conditions. 38 U.S.C. § 1710(e)(1)(F). Based on the Camp Lejeune Act, VA amended its regulations pursuant to authority granted to it under 38 U.S.C. § 501(a)(1). VA amended 38 C.F.R. § 3.307 to establish a presumption of exposure to contaminants in the water supply at Camp Lejeune for all active duty, reserve, and National Guard personnel who served for no less than 30 days (consecutive or nonconsecutive) at Camp Lejeune during the period beginning August 1, 1953, and ending on December 31, 1987. 38 C.F.R. § 3.307(a)(7). VA also amended 38 C.F.R. § 3.309 to prescribe eight conditions that are subject to presumptive service connection in relation to exposure to contaminants in the water supply at Camp Lejeune. 38 C.F.R. § 3.309(f). The specified diseases that are deemed to be associated with exposure to contaminated water at Camp Lejeune are: Kidney cancer Multiple myeloma Liver cancer Parkinson's disease Non-Hodgkin's lymphoma Bladder cancer Adult leukemia Aplastic anemia and other myelodysplastic syndromes Id. The diseases listed in section 3.309(f) must manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. § 3.307(a)(7)(ii). These amended regulations, 38 C.F.R. §§ 3.307(a)(7), 3.309(f), became effective March 14, 2017. Diseases Associated With Exposure to Contaminants in the Water Supply at Camp Lejeune, 82 Fed. Reg. 4173 (January 13, 2017). Important to this appeal is the supplementary information associated with the Federal Register. Specifically, the Federal Register addressed the effective date of the regulation: VA must adhere to the provisions of its change of law regulation, 38 C.F.R. § 3.114, which states that where pension, compensation, dependency and indemnity compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. See also 38 U.S.C. § 5110(g). 82 Fed. Reg. 4173, 4180 (also specifically rejecting retroactive application). Thus, Congress and VA have made it clear that the effective date for an award of service connection premised on the presumption of exposure to contaminated water at Camp Lejeune or presumptive service connection for the listed diseases due to exposure to contaminated water at Camp Lejeune cannot be earlier than the date the regulations were enacted, March 14, 2017. In this case, the Veteran's claim for service connection for non-Hodgkin's lymphoma, premised on exposure to contaminated water at Camp Lejeune during the appropriate regulatory timeframe, was pending as of 2014. But the regulations prevent awarding an earlier effective date prior to March 14, 2017, the date the regulations were enacted. The Veteran, however, asserts he has established direct service connection and is not relying on the presumption of service connection found in 38 C.F.R. § 3.309(f). See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Thus, he asserts VA can award an effective date earlier than March 14, 2017. The Board disagrees. When the Veteran filed his April 2014 claim for service connection, he submitted two medical nexus opinions in support of his claim. In one opinion dated April 14, 2014, from Dr. R.M.D., of the Cleveland Clinic, he stated that the Veteran was under his care for non-Hodgkin's lymphoma. He stated exposure to chemicals found within the water supply at Camp Lejeune are a known risk fact for non-Hodgkin's lymphoma. He opined the Veteran's non-Hodgkin's lymphoma was at least as likely as not connected to such chemical exposure. In a second opinion dated April 17, 2014, the Veteran's primary care doctor, Dr. M.R.F., provided a substantially similar opinion as Dr. R.M.D. The Board does not doubt these medical professionals' respective opinions, finding them highly credible and probative. But each respective opinion rests on the assumption that the Veteran was in fact exposed to contaminants in the water supply at Camp Lejeune. This is the flaw in the Veteran's claim for an earlier effective date. In the record, the Veteran has provided credible evidence, such as articles and government documents, that contaminants were in the water supply at Camp Lejeune. Congress and VA have recognized this fact as well. His assertion is that because he served for a lengthy period of time, more than the required 30 days for presumption of exposure to such contaminants, he must have been directly exposure to such contaminants at Camp Lejeune. The problem with this theory is that it still presumes exposure to contaminants. The record does not contain evidence that the Veteran was in fact directly exposed to contaminants in the water supply at Camp Lejeune. There are no military records documenting direct exposure to contaminants, in-service medical records of such exposure or symptoms associated with such exposure, nor has the Veteran offered competent evidence that he has personal knowledge that he was directly exposed to such contaminants. One of the touchstones of credibility is that a person has personal knowledge of something that they assert happened to them. "Personal knowledge is that which comes to the witness through the use of his sensesthat which is heard, felt, seen, smelled, or tasted." Layno v. Brown, 6 Vet. App. 465, 469 (1994) (citing United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976) (witnesses may testify "upon concrete facts within their own observation and recollectionthat is, facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts."). In sum, the Veteran's claim for an earlier effective date for his service-connected non-Hodgkin's lymphoma cannot be granted. Despite the medical nexus opinions in support of his theory for direct service connection, the Veteran still relies on the presumption of exposure to contaminants offered by 38 C.F.R. § 3.307(a)(7). The medical opinions likewise relied on that presumption as neither medical professional identified any evidence supporting direct exposure to such contaminants on a facts-found basis, and the Board finds no competent evidence in the record to establish direct exposure. Therefore, the earliest effective date that can be awarded under the law is March 14, 2017, the date the VA regulations were enacted. 38 U.S.C. § 5110(a), (g); 38 C.F.R. §§ 3.307(a)(7), 3.309(f), 3.400; 82 Fed. Reg. 4173. Increased Ratings An initial rating is one assigned at the time service-connection is granted. When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is "based upon facts different from the prior claim"). An increased disability rating is generally assigned based on a showing that a service-connected disability has worsened. The Board is to consider each disability in relation to the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999); 38 C.F.R. § 4.1. The Board must also determine if it is factually ascertainable that the disability worsened within one year preceding the filing of the claim because an earlier effective date for an increased disability rating may be warranted. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. . Fenderson, 12 Vet. App. at 126. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts "for the possible dynamic nature of a disability while the claim works its way through the adjudication process." O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all "the evidence of record from the time of the veteran's application." Fenderson, 12 Vet. App. at 127. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic codes are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. 2. An initial compensable disability rating for non-Hodgkin's lymphoma is denied. Rating Criteria Non-Hodgkin's Lymphoma Non-Hodgkins lymphoma is rated under 38 C.F.R. § 4.117, Diagnostic Code 7715, which provides only a 100 precent disability rating "[w]hen there is active disease, during treatment phase, or with indolent and non-contiguous phase of low grade [Non-Hodgkins lymphoma]." Otherwise, a noncompensable rating is assigned. 38 C.F.R. § 4.31 ("In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met."). The Note to Diagnostic Code 7715 provides, A 100 percent evaluation shall continue beyond the cessation of any surgical therapy, radiation therapy, antineoplastic chemotherapy, or other therapeutic procedures. Two years after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any reduction in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no recurrence, rate on residuals under the appropriate diagnostic code(s). 38 C.F.R. § 4.117, Diagnostic Code 7115, Note. Neither Diagnostic Code 7715, VA regulations, nor relevant statutes define what constitutes "active disease," "treatment phase," or "indolent and non-contiguous phase of low grade non-Hodgkins lymphoma." Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 80506 (Fed. Cir. 2010). After extensive literature review, the Board finds there is no uniform medical definition of what these phrases mean. Using reasoned judgment, the Board finds "active disease" under Diagnostic Code 7715 is consistent with "active monitoring." As explained by the Lymphoma Action Organization's website, Active monitoring is a common approach for low-grade (slow-growing) types of lymphoma. These can be difficult to cure completely but they can often be controlled for many years, only needing treatment from time-to-time. If you have low-grade lymphoma that isn't causing bothersome symptoms, you might have active monitoring when you are first diagnosed with lymphoma, or after you've had a course of treatment that hasn't completely got rid of the lymphoma. Active monitoring means that, for your type of lymphoma, there is no benefit in starting treatment before it is needed. Active Monitoring (watch and wait), Lymphoma Action, https://lymphoma-action.org.uk/about-lymphoma-treatment-lymphoma/active-monitoring-watch-and-wait (last visited Dec. 16, 2021). The Board finds the phrase "treatment phase" is broad. This phrase is not limited by any specific timeframe, symptoms, nor anything else. "Treatment," in a medical context, is generally defined as "a therapeutic agent, therapy, or procedure used to treat a medical condition." Treatment, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/treatment, Definition 2a (last visited Dec. 16, 2021). Therefore, a "treatment phase" is the time period where the claimant receives a therapeutic agent, therapy, or procedure used to treat non-Hodgkins lymphoma. "Indolent lymphoma is a type of non-Hodgkin's lymphoma that grows and spreads slowly. An indolent lymphoma usually won't have any symptoms." Indolent Lymphoma, Healthline.com, https://www.healthline.com/health/indolent-lymphoma (last visited Nov. 16, 2021). Noncontiguous lymphoma is "[l]ymphoma in which the lymph nodes containing cancer are not next to each other but are on the same side of the diaphragm (the thin muscle below the lungs that helps breathing and separates the chest from the abdomen)." Noncontiguous lymphoma, National Cancer Institute, https://www.cancer.gov/publications/dictionaries/cancer-terms/def/noncontiguous-lymphoma (last visited Dec. 16, 2021). "Non-Hodgkin's lymphoma is called 'low grade' or 'indolent' when the lymphoma cells are dividing slowly. Low-grade non-Hodgkin's lymphoma can develop over a long period of time and is often at an advanced stage by the time it is diagnosed." Low-grade non-Hodgkin lymphoma, Lymphoma Action, https://lymphoma-action.org.uk/types-lymphoma/non-hodgkin-lymphoma (last visited Dec. 16, 2021). Using the above definitions as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6. Analysis The medical records submitted by the Veteran document that he was diagnosed with non-Hodgkin's lymphoma in 2014. He received chemotherapy treatment starting immediately. According to an April 2017 VA-contracted examiner, the Veteran reported that his chemotherapy ended around December 2014. He received a CT scan every six months thereafter to monitor his status to ensure no progression. At the time of the examination, he was not on continuous medications and the examiner endorsed that his lymphoma was in remission. There was no other evidence of ongoing treatment for his lymphoma nor an active disease. He received another VA-contracted examination in March 2019. The examiner endorsed that the Veteran was not on continuous medications related to his lymphoma, and that his lymphoma remained in remission. The examiner did not endorse any conditions associated with the Veteran's lymphoma nor an active disease. In August 2021, the Veteran submitted a Hematologic and Lymphatic Conditions Disability Benefits Questionnaire completed by a private physician. That physician documented that the Veteran was not on continuous medications related to his lymphoma, and that his lymphoma remained in remission. He endorsed that the Veteran's treatment was completed and that he was in "watchful waiting status." "Watchful waiting" was not defined by the physician, but the Board finds it means closely watching a patient's condition but not giving treatment unless symptoms appear or change. Watchful waiting is sometimes used in conditions that progress slowly. It is also used when the risks of treatment are greater than the possible benefits. During watchful waiting, patients may be given certain tests and exams. . . . It is a type of expectant management. Watchful waiting, National Institute of Health, Nation Cancer Institute, available at https://www.cancer.gov/publications/dictionaries/cancer-terms/def/watchful-waiting (last visited Dec. 16, 2021). Each of the VA-contracted examinations as well as the private Questionnaire indicate that since March 14, 2017, the Veteran's non-Hodgkin's lymphoma was in remission, not active, and the Veteran was not on continuous medications related to the disability. The Veteran's private medical records associated with his claims file likewise indicate that the Veteran's non-Hodgkin's lymphoma was not active since March 14, 2017. He did receive routine examinations and check-ups to monitor his status, but he did not receive a therapeutic agent, therapy, or procedure used to treat his disability during his examination or check-ups. In all, since the Veteran's chemotherapy treatment ended toward the end of 2014, he has not experienced an "active disease, during treatment phase, or with indolent and non-contiguous phase of low grade [Non-Hodgkins lymphoma]." 38 C.F.R. § 4.117, Diagnostic Code 7715. Therefore, an initial disability rating of 100 percent is not warranted. The Board recognizes that the Veteran requests an increased rating of 100 percent dating back to the filing of his claim for service connection in April 2014, which includes the period for which he was undergoing chemotherapy for this disability. Unfortunately, as discussed above, the earliest effective date that can be awarded is March 14, 2017. Therefore, any treatment for the disability prior to that date cannot be service connected. In addition, as it has been more than two years since the Veteran's treatment ceased, the appropriate disability rating as of March 14, 2017, must be determined based on all evidence. 38 C.F.R. § 4.117, Diagnostic Code 7715, Note ("Two years after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination."). 3. A compensable disability rating for service-connected hypertension is denied. Rating Criteria Hypertension Hypertension is rated under 38 C.F.R. § 4.104, Diagnostic Code 7101 ("Hypertensive vascular disease (hypertension and isolated systolic hypertension)"). Diagnostic Code 7101 provides: Rating (%) Diastolic pressure predominantly 130 or more 60 Diastolic pressure predominantly 120 or more 40 Diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more 20 Diastolic pressure predominantly 100 or more; or systolic pressure predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control 10 Note (1): Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note (2): Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note (3): Evaluate hypertension separately from hypertensive heart disease and other types of heart disease. "In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met." 38 C.F.R. § 4.31. Analysis The Veteran filed his claim for an increased disability rating for his service-connected hypertension in April 2014. The Board is required determine if it is factually ascertainable that the disability worsened within one year preceding the filing of the claim such that an earlier effective date for any increased rating is warranted. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In an April 2014 correspondence, the Veteran indicated that he believed his hypertension had worsened since his is award of service connection in 1995 with an initial noncompensable disability rating. He reported that at the time of his initial rating his hypertension was controlled by a single medication. As of 2014, his hypertension required a second medication taken twice a day. He stated that prior to his second medication, he experienced daily headaches. He submitted a medical record documenting that he was taking Lisinopril to control his hypertension, and on March 10, 2014, he was prescribed Metoprolol in addition to his Lisinopril. On review of all medical records, including the VA examinations offered to the Veteran in connection with his claim for an increased disability rating, his diastolic blood pressure was not predominantly 100 or more nor was his systolic pressure was not predominantly 160 or more since 2014. The Veteran is not asserting that his diastolic or systolic blood pressures met the rating criteria for a compensable disability rating since 2014. Instead, he asserts that due to the medications he takes, his blood pressure is controlled, and without his medications his blood pressure readings would be higher. Hence, he would be entitled to a compensable disability rating of at least 10 percent due to "minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control." 38 C.F.R. § 4.104, Diagnostic Code 7101 (10 percent rating criteria). In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the United States Court of Appeals for Veterans Claims held that, when assigning a disability rating, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. "Thus, if [the applicable diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication when evaluating [the disability]. Conversely, if [the applicable diagnostic code] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The en banc Court in McCarroll held that "the plain language of the rating criteria listed under [Diagnostic Code] 7101 demonstrates that this diagnostic code, read as a whole, contemplates the effects of medication in assigning a disability rating for hypertension." Id. at 272. The Court also held "that [Diagnostic Code] 7101 contemplates the effects of medication and, thus, that Jones is not applicable" when the Board evaluates hypertension. Id. at 273. In light of the clear holding of McCarroll, the Veteran's claim for a compensable disability rating for service-connected hypertension must be denied. The Board does not doubt that his hypertension has worsened since his initial disability evaluation. But his medications have adequately controlled his blood pressure such that he does not meet any of the rating criteria, which require certain numerical readings of systolic and/or diastolic blood pressure despite medication use. Furthermore, on review of his military medical records and post-service medical records, the Board is unable to conclude that he experienced "predominate" diastolic blood pressure of 100 or more prior to or while using medication. His history reflects diastolic readings less than 100 in service and thereafter. To be entitled to a minimum 10 percent disability rating, the evidence must demonstrate either: (1) diastolic pressure predominantly 100 or more; or (2) systolic pressure predominantly 160 or more; or (3) minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran's history does not demonstrate a diastolic pressure that was predominantly 100 or more. The Board finds the evidence of record does not meet any of the criteria. As the Veteran's use of medication to control his blood pressure is contemplated by the rating schedule, the Board is unable to afford him a compensable disability rating under the law. 4. From March 31, 2014, to December 9, 2016, an initial disability rating of 30 percent, but no higher, for service-connected coronary artery disease is granted. 5. From December 9, 2016, an increased disability rating of 60 percent, but no higher, for service-connected coronary artery disease is granted. Rating Criteria Coronary Artery Disease Prior to November 14, 2021, VA regulation, 38 C.F.R. § 4.104, Diagnostic Code 7005, provided the following rating schedule regarding coronary artery disease (CAD), also classified as arteriosclerotic coronary heart disease: Rating (%) Arteriosclerotic heart disease (Coronary artery disease): With documented coronary artery disease resulting in: 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 100 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 60 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 dilatation on electrocardiogram, echocardiogram, or X-ray 30 Workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required 10 Note (1): Evaluate cor pulmonale, which is a form of secondary heart disease, as part of the pulmonary condition that causes it. Note (2): One MET (metabolic equivalent) 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. 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. Note (3): For this general formula, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. "In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met." 38 C.F.R. § 4.31. The phrases "left ventricular dysfunction with an ejection fraction of 30 to 50 percent" (as found in the 60-percent rating) and "left ventricular dysfunction with an ejection fraction of less than 30 percent" (as found in the 100-percent rating) have been specifically defined in Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). The Otero-Castro court held that a veteran is entitled to a 60-percent rating by showing "left-ventricular dysfunction" or "left-ventricular ejection fraction of 30% through 50%." Id. at 308, 382. The court concluded that a left-ventricular ejection fraction of 30% through 50% is itself evidence of dysfunction. Id. at 38182. The same analysis applies to the 100-percent rating by analogy. Notably, 38 C.F.R. § 4.104, Diagnostic Code 7005 uses the word "or," which is disjunctive, within the disability criteria, i.e., 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. Id. (Emphasis added). The use of the word "or" provides for an independent basis rather than an additional requirement for a disability rating. A veteran need only prove the existence of any one of the listed criteria to satisfy the requirement for a disability evaluation. As of November 14, 2021, 38 C.F.R. § 4.104, Diagnostic Code 7005 was amended, and it now provides as follows: Rating (%) Arteriosclerotic heart disease (Coronary artery disease): With documented coronary artery disease resulting in: Workload of 3.0 METs or less results in heart failure symptoms 100 Workload of 3.1-5.0 METs results in heart failure symptoms 60 Workload of 5.1-7.0 METs results in heart failure symptoms; or evidence of cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging) 30 Workload of 7.1-10.0 METs results in heart failure symptoms; or continuous medication required for control 10 Note (1): Evaluate cor pulmonale, which is a form of secondary heart disease, as part of the pulmonary condition that causes it. Note (2): One MET (metabolic equivalent) 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. When the level of METs at which breathlessness, 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, a medical examiner may estimate the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in those symptoms. Note (3): For this general formula, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. A noticeable difference following the amendments is that the left ventricular dysfunction with an ejection fraction is no longer part of any of the rating criteria; instead, only METs are included. Because the Veteran's appeal has been pending prior to these amendments, the Board is required to analyze his claim under both versions of 38 C.F.R. § 4.104, Diagnostic Code 7005, as of November 14, 2021, and whichever criteria is more favorable to the Veteran will be applied. See Ervin v. Shinseki, 24 Vet. App. 318 (2011) (discussing retroactivity and effects of changes in law or regulation during the pendency of an appeal), opinion corrected, 25 Vet. App. 178 (2012). Analysis From March 31, 2014, to December 9, 2016 The Veteran received an initial disability rating of 10 percent for his CAD effective March 31, 2014. When he submitted his initial claim for service connection, he submitted a medical document from Cleveland Clinic dated February 11, 2014, which documented an exercise stress echo test that was positive for ischemia at 96 percent of maximum predicated heart rate, which the medical professional recorded as the equivalent of 5.7 METs. It appears that the VA Regional Office overlooked this medical evidence when it assigned the initial rating. The VA Regional Office rated the Veteran's CAD as 10 percent disabling based only on his continuous medication required for control. In addition, the VA Regional Office obtained a September 2014 VA examination assessing the Veteran's CAD. The examiner documented the February 11, 2014, exercise stress test results of 5.7 METs. The examiner also conducted an interview based METs test. The Veteran reported symptoms of dyspnea, fatigue, and dizziness, and the examiner opined that the Veteran's results represented a workload of greater than 5 METs but not greater than 7. But the examiner stated that the LVEF (which was 65%) was a better indicator of his current cardiac status rather than his METs level because his METs level was affected by co-morbidities of past tobacco abuse and his lymphoma. On review of the relevant evidence during this timeframe, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's CAD manifested as a workload of greater than 5 METs but not greater than 7 METs with symptoms of dyspnea, fatigue, and dizziness. Although the September 2014 examiner believed his LVEF was a better measurement of his cardiac status, the February 2014 private physician made no such recommendation. Each of these cardiac test results are equally credible and probative, and the Board finds the evidence is evenly balanced in this respect. Therefore, the Board finds the Veteran is entitled to an initial disability rating of 30 percent for service-connected CAD from March 31, 2014, to December 9, 2016. There is no evidence of record indicating, or reasonably suggesting, that during this timeframe that the Veteran's CAD more closely resembled the symptoms associated with the 60 percent or 100 percent rating criteria, and the Veteran makes no assertions of such. Therefore, a disability rating in excess of 30 percent from March 31, 2014, to December 9, 2016, is not warranted. From December 9, 2016 On August 21, 2020, the Veteran submitted a medical record from a private heart/vascular care institute. In that record were the results of a December 9, 2016, echocardiogram. The examining medical professional recorded that the Veteran's CAD resulted in left ventricular ejection fraction of 4550%. The Veteran submitted a private echocardiogram dated April 17, 2017, which showed LVEF of greater than 55 percent with mild dilation of the left ventricle. The Veteran received a VA-contracted examination on April 27, 2017. The examiner conducted an interview based METs assessment. The examiner endorsed the Veteran had symptoms of dyspnea and fatigue associated with his CAD. The examiner opined that the Veteran's METs level was greater than 5 but less than 7. On March 4, 2019, the Veteran received a VA-contracted examination assessing his CAD. The examiner documented METs at the level of greater than 5 but less than 7 with symptoms of dyspnea. On October 23, 2020, the Veteran received another VA-contracted examination for his CAD. The examiner documented METs at the level of greater than 3 but less than 5 with symptoms of dyspnea, fatigue, and angina. The Veteran also submitted an August 17, 2020, and an August 10, 2021, private echocardiogram each showing left ventricular ejection fraction of 4550%. Based on this evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds the evidence reasonably demonstrates that from December 9, 2016, the Veteran's CAD most closely resembled a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Although the medical evidence also indicates symptoms associated with the 30 percent rating criteria, the Board finds the evidence, in total, is in relative balance as to whether the Veteran's CAD most closely resembled the 30 percent or 60 percent rating criteria from December 9, 2016. Resolving reasonable doubt in his favor, the Board finds a disability rating of 60 percent is warranted from December 9, 2016. There is no evidence of record indicating, or reasonably suggesting, that during this timeframe that the Veteran's CAD resulted in symptoms resembling the 100 percent rating criteria, and the Veteran makes no assertions of such. Therefore, a rating in excess of 60 percent from December 9, 2016 is not warranted. The Board has considered whether the Veteran would benefit from the newly amended Diagnostic Code 7005 as of November 14, 2021. The Board finds he would not. The only rating criteria associated with a 100 percent rating is the requirement of a workload of 3.0 METs or less results in heart failure symptoms. There is no evidence of record that the Veteran experienced a workload of 3.0 METs or less as of November 14, 2021. Therefore, applying the new diagnostic code does not benefit him. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability is remanded. A request for total disability evaluation based on individual unemployability (TDIU) is "part and parcel" of a claim for an increased disability rating and is not a separate freestanding claim itself but rather an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule. Rice v. Shinseki, 22 Vet. App. 447, 45355 (2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating). In this case, the Veteran is sought an increased disability rating for multiple disabilities. In connection with his claims, in a December 2, 2016, correspondence, the Veteran reported that he retired from his place of employment in 2016 "due to being fatigued and the fact that it was extremely hard to concentrate on any given task." The Veteran's VA and VA-contracted examinations of record document that his hypertension, CAD, and non-Hodgkin's lymphoma impacted his ability to work. Therefore, whether the Veteran is entitled to an award of TDIU is properly considered part of his pending claims. See Rice, 22 Vet. App. at 45455. As no development has occurred on this claim, remand is required. (Continued on the next page) Accordingly, the matter is REMANDED for the following actions: 1. Provide the Veteran with a notice regarding what is necessary to substantiate a claim for entitlement to a total disability rating based on individual unemployability (TDIU) and request that he complete and return a formal application for entitlement to TDIU and an authorization to obtain information from his previous employers. If the Veteran returns any form which is incomplete or contains insufficient information, he must be informed of such and be given the opportunity to provide a complete one. The VA Regional Office should take any additional, reasonable, and necessary developmental action to adjudicated the claim for TDIU. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.