Citation Nr: 21076692 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-19 456 DATE: December 27, 2021 ORDER Entitlement to an initial rating greater than 10 percent for ischemic heart disease (IHD), to include coronary artery disease (CAD), prior to November 13, 2015, is denied. Entitlement to a disability rating greater than 30 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 13, 2015, is denied. FINDINGS OF FACT 1. The record evidence shows that, prior to November 13, 2015, the Veteran's CAD required continuous medication and resulted in a left ventricular ejection fraction greater than 50 percent; there is no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, or congestive heart failure. 2. The record evidence shows that, for the entire appeal period, the Veteran's PTSD was manifested by, at worst, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. The record evidence shows that, prior to November 13, 2015, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent prior to November 13, 2015, for CAD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7005. 2. The criteria for a disability rating greater than 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. The criteria for a TDIU prior to November 13, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to September 1968. He died in March 2021. The Appellant is his surviving spouse. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015 and April 2020, the case was remanded to the RO for additional development. 1. Entitlement to an initial rating greater than 10 percent prior to November 13, 2015, for CAD. As an initial mater, the Board notes that, as of November 13, 2015, the Veteran was in receipt of a 100 percent rating for his heart disability. As this is the maximum schedular rating available, that period is no longer on appeal and will not be discussed further. Prior to November 13, 2015, the Veteran's service-connected CAD is evaluated as 10 percent disabling. Turning to the evidence of record, private treatment records reflect a December 2011 electrocardiogram (EKG), showed an ischemic electrocardiographic response to exercise and METs of 11.8. A March 2012 nuclear stress test revealed 10.4 METs and a left ventricular ejection fraction (LVEF) of 60 percent. A July 2012 private disabilities benefits questionnaire (DBQ) reflected a diagnosis of CAD. Further, the examiner noted continuous medication was required for control of the Veteran's heart condition but determined that he did not have CHF. He had a heart valve condition, specifically moderate calcific aortic valve stenosis with trivial regurgitation. The Veteran underwent VA examination in December 2012. He was diagnosed as having ischemic and non-ischemic heart disease, arrythmias, valvular disease, and cardiac surgery. Specifically, it was noted he had undergone a cardiac catheter with a stent placement. (The Board notes parenthetically that the December 2012 examiner, and a later March 2016 VA opinion, determined the Veteran's aortic valvular disease was unrelated to his IHD.) He reported experiencing dizziness, angina, and fatigue, and a treatment plan that includes taking continuous medication. Further, based on his responses, the lowest level of activity at which he developed such symptoms was between 7 and 10 METs, which is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging (6 mph). December 2012 and February 2013 private treatment records reflect LVEF of 65 percent and an August 2013 record reflects METs of 10.1. VA treatment records reflect that he golfed and exercised regularly, to include core strength exercises and cardio workouts, sometimes 6 days a week. In December 2015, the Veteran submitted a statement indicating his heart disability had worsened, and in his April 2016 substantive appeal, stated he had a recent diagnosis of CHF. The Board notes here that, after experiencing shortness of breath and chest pain, a November 13, 2015 echocardiogram demonstrated a decreased ejection fraction of 35 to 40 percent along with evidence of left ventricular systolic dysfunction. Thus, he was diagnosed with CHF which resulted in the receipt of a 100 percent disability rating as of November 13, 2015 The Veteran was afforded a VA telehealth examination in June 2020. At such time, he was diagnosed as having CAD, CHF, valvular heart disease, and a heart valve replacement. As noted elsewhere, service connection is not in effect for his valvular heart disease and subsequent heart valve replacement. An interview-based METs test revealed that he reported dyspnea with activity at 3 to 5 METs which is consistent with activities such as light yard work (weeding), mowing the lawn (power mower), brisk walking (4 mph). Having reviewed the record evidence, the Board finds that an initial rating greater than 10 percent prior to November 13, 2015, for CAD is not warranted. In this regard, while such disability requires continuous medication, it results in a left ventricular ejection fraction greater than 50 percent. And there is no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, or congestive heart failure prior to November 13, 2015. Specifically, the July 2012 private DBQ, December 2012 VA examination, and private treatment records reflect a diagnosis of CAD, as confirmed by EKG with complaints of dizziness, angina, and fatigue, and a treatment plan that includes taking continuous medication. Further, his left ventricular ejection faction remained greater than 60 percent in March 2012 and 65 percent in December 2012 and February 2013. Consequently, the Board finds that the criteria for an initial rating greater than 10 percent for CAD is not warranted. 2. Entitlement to a rating in excess of 30 percent for PTSD. The Veteran's PTSD is rated as 30 percent disabling for the entire appeal period, stemming from his January 14, 2014 increased rating claim, pursuant to DC 9411, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. In this regard, a 30 percent rating is provided for when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. The Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the General Rating Formula "indicates that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a Veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (August 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Turning to the evidence of record, at his December 2012 VA examination, the Veteran reported symptoms of depressed mood, anxiety, and chronic sleep impairment. In regard to his social functioning, the Veteran reported he had a good marriage, enjoyed playing weekly golf, and had several acquaintances and friends. He also enjoyed bicycling and fixing things around the home. He and his wife went out to dinner and the movies at times. His mood was euthymic with congruent affect. He was alert and oriented to people, place and time with normal speech and good eye contact. His thought process was linear and goal directed, and he denied audio and visual hallucinations, and suicidal and homicidal ideation. The VA examiner found the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication, which is consistent with a 10 percent rating under the General Rating Formula. The Veteran was afforded another VA examination in September 2014, at which time he was diagnosed with PTSD and major depressive disorder (MDD), recurrent, moderate, which the examiner opined was likely a reaction to his chronic PTSD symptoms. At such time, the Veteran reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The Veteran stated his relationship with his wife was pretty good, but they had some issues with communicating, and that they argued a couple times a week. He noted they went out to eat and took walks when the weather was nice. The Veteran also had a sister in Florida with whom he talked once or twice a month, and a close friend in Illinois and they talked every other day. Further, he said he spent time with neighbors, and played in a senior golf league once a week. As will be discussed further below, in terms of occupational functioning, the Veteran reported working part-time at a golf course, but he had retired in 2009 from truck driving due to diabetes mellitus, type II and insulin dependence. He further reported being "triggered" by crowds, burning smells, and driving at night, and stated his irritability was getting worse. Upon behavioral observation, the Veteran was pleasant and affect stable. Speech was within normal limits, and no audiovisual hallucinations or suicidal or homicidal ideation was indicated. The VA examiner determined the Veteran's PTSD resulted in occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Later that month at a VA psychiatry appointment, the Veteran reported his motivation had improved, but not fully. He stated he worked in his yard, continued to play golf, watched TV, walked with his wife every other day, and talked with his close friend daily. VA treatment records reflect the Veteran often had appropriate affect and mood. Further the Veteran remained active playing golf, working out, and taking walks with his wife. In November 2016 and in February and March 2017, he reported he was not depressed. In June 2017, he reported having a good relationship with his wife, and was looking forward to taking a cruise with her. In August 2017, he described his mood as "feeling a lot better," and thus, no further psychotherapy visits were scheduled at that time. A March 2020 psychiatry note reflects the Veteran described the relationship with his wife as excellent, and that his mood was "pretty good," and his PTSD was stable. At such time he was oriented times 4, appropriately dressed, with a euthymic mood and animated affect. The Veteran underwent another VA examination in June 2020. Again, he was diagnosed with PTSD, and MDD, recurrent, moderate. He reported having depressed mood. In terms of social functioning, he rated his marriage a 9.75/10, and reported he had a friend he played golf with and talked with almost daily. Further, he had reconnected with a platoon member 3 to 4 years ago and stated that was a very positive experience. He was no longer volunteering at the golf course, as he and his wife had moved to a new city. The VA examiner opined the Veteran's PTSD with MDD resulted in occupational and social impairment due to mild or transient symptoms. Upon review of the foregoing evidence, the Board finds a rating in excess of 30 percent for PTSD with MDD is not warranted at any time during the appeal period. Here, the Board affords the VA examiners' findings significant probative value as such were based on psychological evaluation of the Veteran and consideration of his own lay reports of his symptoms in light of the rating criteria. In particular, all VA examiners found the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms, which is consistent with a 10 percent rating under the General Rating Formula. Further, the Veteran has maintained a close relationship with his wife, and although the relationship has been strained at times, he mostly described the marriage as good or excellent. Other social relationships included his sister, a close friend in Illinois, neighbors, and golfing partners. In regards to his occupational functioning, the Veteran reported retiring in 2009, but volunteered at a golf course one day a week until moving in July 2016. Moreover, with respect to the specific types of symptoms associated with a higher rating, the Board notes the evidence, to include the Veteran's own lay statements, does not reflect suicidal ideation, obsessional rituals, speech intermittently illogical, obscure, or irrelevant, or near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. Therefore, in consideration of the totality of the nature, frequency, severity, and duration of the Veteran's psychiatric symptomatology, and with particular attention to both the occupational and social impairment resulting therefrom, the Board finds a rating in excess of 30 percent for PTSD with MDD is not warranted under the General Rating Formula at any time during the appeal period. 3. Entitlement to a TDIU prior to November 13, 2015. As an initial matter, the Board observes, as noted supra, that during the course of the appeal, a 100 percent rating for the Veteran's heart disability was awarded as of November 13, 2015, and the Board notes the Veteran was also in receipt of special monthly compensation (SMC) for loss of use of a creative organ, thereby rendering the claim for a TDIU as of such date moot. However, entitlement to a TDIU prior to such date remains viable on appeal. In this regard, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Although VA did not receive the Veteran's Application for Increased Compensation Based on Unemployability (VA 21-8940), until January 14, 2014, the appeal period before the Board stems from receipt of the Veteran's increased rating claim for his heart disability on February 26, 2013, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As of such date, the Veteran is service connected for PTSD, evaluated as 30 percent disabling; IHD with CAD, evaluated as 10 percent disabling; diabetes mellitus, type II, evaluated as 40 percent disabling prior to May 1, 2015, and 20 percent thereafter, peripheral neuropathy of the left lower extremity, evaluated as 10 percent disabling, peripheral neuropathy of the right lower extremity, evaluated as 10 percent disabling, and erectile dysfunction, evaluated as noncompensably disabling. In this regard, Veteran's combined disability rating is 70 percent from February 26, 2013 to May 1, 2015, and 60 percent thereafter. Thus, he meets the schedular criteria from February 26, 2013 to May 1, 2015. C.F.R. § 4.16(a). Nonetheless, if it is shown that such disabilities render the Veteran unable to secure or follow a substantially gainful occupation for the period of May 1, 2015 to November 13, 2015, the claim may be referred to the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 4.16(b). In this regard, the Veteran reported in his January 2014 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) that he last worked as a truck driver in March 2009. He reported completing high school but had no other education or training. At his September 2014 VA PTSD examination, the Veteran again reported that he retired from working as a truck driver in 2009 but indicated that he completed one semester of college in addition to high school. In his VA Form 21-8940 and hearing testimony, the Veteran reported that he left his position of employment due to being placed on insulin for his service-connected diabetes mellitus, type II, as he could not maintain his driving card and be insulin dependent. In regard to the functional impairment associated with the Veteran's service-connected disabilities, in a July 2012, the Veteran's private physician, Dr. R.R., found the Veteran's heart disability did not impact his ability to work. At his December 2012 VA examinations for his heart disability and his diabetes mellitus, type II, the VA examiner also found that the Veteran's heart disability did not impact his ability to work. Further, while his insulin dependence limited his ability to drive trucks, such did not otherwise limit his work. In November 2013, the Veteran underwent VA examination for his peripheral neuropathy of the bilateral lower extremities (BLE), at which time the examiner found such disabilities did not impact his ability to work. In September 2014, the Veteran underwent VA examinations for his diabetes mellitus, type II, peripheral neuropathy of the BLE, heart disability and his erectile dysfunction. In this regard, the VA examiner noted that none of his disabilities affected his ability to work, with the exception of diabetes mellitus, type II. Specific to his diabetes, the Veteran noted he could not do over-the-road (long distance) trucking because when he was on oral medication, he would have to stop for something sweet when his "sugar was low." However, the examiner opined he could do any sedentary employment. Specific to physical limitations, the Board observes the Veteran remained very physically active during the period on appeal. VA treatment records reflect he worked in his yard, played golf frequently, to include tournaments, walked regularly with his wife, and exercised by lifting weights and doing cardio up to 6 times a week. As pertinent to the occupational impact of his PTSD, the Veteran reported his former job as a trucker allowed him to go for a whole day without talking to anyone. However, as discussed above, at each VA PTSD examination the examiners found he had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In this regard, while the Veteran stated his irritability was getting worse, he volunteered once a week at a golf course through July 2016 and was able to interact professionally with the public. While he additionally stated he did not like crowds, the Veteran was able to attend major league baseball games if they were not crowded and go on a cruise, demonstrating an ability to be around people. Based upon a review of the foregoing, the Board finds that, prior to November 13, 2015, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. In this regard, the record reflects that none of his physical disabilities, with the exception of his insulin dependence, affected his ability to work. In fact, the Veteran remained physically active. Specific to his diabetes mellitus, such did not preclude sedentary employment, and while long distance trucking may have been impossible due to insulin dependence, the Veteran was not necessarily precluded from other, local, positions as a driver. Further, as pertinent to his PTSD, the Veteran's volunteer position, while only once a week, demonstrates his ability to interact with the public, and his ability to perform the physical and mental acts necessary to perform such position. Consequently, the Board finds that prior to November 13, 2015, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation consistent with his education and work history. Therefore, referral for extra-schedular consideration of a TDIU prior to such date, and entitlement to a TDIU as of such date is not warranted. As the preponderance of the evidence is against such claim, there is no doubt to be resolved and it must be denied. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.