Citation Nr: 21006457 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-13 165 DATE: February 4, 2021 ORDER Entitlement to a disability rating greater than 10 percent prior to June 18, 2018 for coronary artery disease post stent placement with unstable angina pectoris and a history of myocardial infarction (CAD) is denied. Entitlement to a disability rating greater than 30 percent from June 18, 2018 for coronary artery disease post stent placement with unstable angina pectoris and a history of myocardial infarction (CAD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against a finding that CAD resulted in dyspnea, fatigue, angina, dizziness, or syncope with a workload of seven METs; or cardiac hypertrophy or dilatation prior January 18, 2018. 2. The weight of the competent and probative evidence is against a finding that CAD results in dyspnea, fatigue, angina, dizziness, or syncope with a workload of five METs or less; LVEF of 50 percent or less; or an episode of acute congestive heart failure as of January 18, 2018. 3. The competent and probative evidence is at least in equipoise as to whether the Veteran’s service connected disabilities, have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for CAD prior to January 18, 2018, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, DC 7005. 2. The criteria for a rating greater than 30 percent for CAD from January 18, 2018, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, DC 7005. 3. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) are met. 38 U.S.C. § 1155, 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to December 1970. This matter was previously before the Board in July 2017 and February 2019 where it was remanded for additional development. As part of the Board’s February 2019 remand directives, the Agency of Original Jurisdiction (AOJ) was directed to ask the Veteran to fully complete a VA Form 21-4142 for his cardiologist Dr. U.T., and any other provider who has treated him for his heart disability since 2012. The Veteran did not respond to this request. The AOJ was also directed to return the January 2018 heart examination report to the examiner (or any other qualified examiner) for an addendum opinion. The Veteran was subsequently granted another VA heart examination in February 2020. The February 2019 remand directives having been substantially complied with; the matter is now before the Board again. D'Ariesv. Peake, 22Vet. App.97, 105 (2008); Stegall v. West, 11Vet. App.268, 271 (1998). The issue of entitlement to service connection for diabetes mellitus was previously referred by the Board to the AOJ for appropriate action. The evidence contains a November 2020 rating decision on the issue. However, the Veteran has not appealed that rating decision to the Board. Thus, the issue of entitlement to service connection for diabetes mellitus is not in appellate status before the Board at this time. 1. Entitlement to a disability rating greater than 10 percent prior to January 18, 2018 for coronary artery disease (CAD) 2. Entitlement to a disability rating greater than 30 percent from January 18, 2018 for coronary artery disease (CAD) Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 593. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Veteran contends that he is entitled to a rating greater than 10 percent prior to January 18, 2018, and in excess of 30 percent thereafter, for CAD, evaluated under Diagnostic Code 7005. Under Diagnostic Code 7005, a 100 percent rating is warranted for documented CAD resulting in chronic congestive heart failure; or workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular ejection fraction (LVEF) of less than 30 percent. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year; or a workload greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of 30 to 50 percent. A 30 percent rating is warranted for workload of greater than five METs but not greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. A 10 percent rating is warranted for workload of greater than seven METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required. 38 C.F.R. § 4.104, DC 7005. Some of the pertinent medical evidence of record describes the Veteran's functional exertional capacity in terms of "METs" values, representing "Metabolic Equivalent of Task." Briefly, as pertinent to this case, the Board observes that VA's heart disability benefits questionnaires explain that "1-3 METs" is consistent with activities such as eating, dressing, taking a shower, and slow walking (2 mph) for one to two blocks. A range of ">3-5 METs" is consistent with activities such as light yard work (weeding), mowing the lawn with a power mower, and brisk walking (4 mph). A range of ">5-7 METs" is consistent with activities such as walking one flight of stairs, golfing (without a cart), mowing the lawn with a push mower, and heavy yard work (digging). A range of ">7-10 METs" is consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging (6 mph). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating greater than 10 percent is not warranted for CAD prior to January 18, 2018; and a rating greater than 30 percent is not warranted as of January 18, 2018. An April 2007 medical treatment record revealed normal LV function and a normal ejection fraction at 60 percent. No wall motion abnormalities, no mitral regurgitation and no other significant coronary disease were noted. See April 2007 Medical Treatment Record - Non-Government Facility. The Veteran performed an exercise stress test in May 2009. It was noted that the Veteran exercised for 10:58 minutes on Bruce protocol and achieved a maximum of 11.5 METS. His maximum heart rate was 129, 80 percent of age predicted maximum. See May 2009 Medical Treatment Record - Non-Government Facility. The Veteran was afforded a VA examination in November 2011. The examiner noted ischemic heart disease as the diagnosis. List of medications included lisinopril 20mg daily, isosorbide 30 mg daily, aspirin 81 mg daily and pravastatin 40 mg daily. The cardiac functional assessment was said to be 11.5 METS as per the May 2009 stress test. Upon examination, there was no evidence of cardiac hypertrophy or dilation and the LVEF was 65 percent. The examiner noted that the Veteran’s heart disability did not impact his ability to work. See November 2011 VA Examination. In a November 2016 routine follow-up, the Veteran stated that he still follows with outside cardiologist and that his stress test the previous year was normal. See CAPRI. The Veteran was afforded a VA Heart Conditions examination in January 2018. The Veteran reported that he had acute MI in May 2002 and that he was admitted to Toledo hospital and diagnosed with CAD and had four coronary stents placement. He denied any chest pain or shortness of breath with his regular activities and that he is currently retired and takes care of his household activities and his granddaughter. The examiner noted that continuous medication was required for the Veteran’s heart condition as he takes baby aspirin 81 mg daily, metoprolol 50 mg bid, and isosorbide 30 mg daily. There was no evidence of congestive heart failure, cardiac arrhythmia, heart valve condition or cardiac hypertrophy. The examiner noted that the November 2011 echocardiogram revealed a left ventricular ejection fraction (LVEF) of 65 percent. An interview based METS Testing was performed and the results indicated a METS level of >5-7 METs. This METs level has been found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavy yard work (digging). The examiner stated that the Veteran's heart condition does not impact his ability to work. See January 2018 C&P Examination. Following the February 2019 Board remand, the Veteran was afforded a VA Heart Conditions examination in January 2020. The diagnosis was coronary artery disease. The examiner noted that an Echocardiogram was performed on January 9, 2020 which revealed evidence of cardiac hypertrophy and cardiac dilation. The examiner noted that continuous medication was required for the Veteran’s heart condition. There was no evidence of congestive heart failure, cardiac arrhythmia or heart valve condition. There were no hospitalizations for the treatment of the Veteran’s heart condition. An interview based METS Testing was performed and the results indicated a METS level of >5-7 METs with symptoms of dyspnea and dizziness. This METs level has been found to be consistent with activities such as walking 1 flight of stairs, golfing (without cart), mowing lawn (push mower), heavy yard work (digging). The examiner stated that the Veteran's heart condition does not impact his ability to work. The examiner stated that the Veteran’s CAD does not impact the ability to function in an occupational environment. See January 2020 C&P Examination. In light of the foregoing, the Board finds that a rating greater than 10 percent for CAD is not warranted prior to January 18, 2018, because the weight of the competent and probative evidence is against finding a workload of greater than five METs but not greater than seven METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or, evidence of cardiac hypertrophy or dilatation. See 38 C.F.R. § 4.104, DC 7005. The Board further finds that a rating greater than 30 percent is not warranted as of January 18, 2018, because the weight of the competent and probative evidence is against finding a workload of five METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; LVEF of 50 percent or less; or an episode of acute congestive heart failure in the past year. See 38 C.F.R. § 4.104, DC 7005. The Veteran's reported symptoms dizziness and dyspnea are contemplated by the assigned 30 percent rating for CAD. All possibly applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher and/or additional evaluation for his heart disability based on the evidence. See 38 C.F.R. § 4.104. The Board notes that the benefit of the doubt has been applied, where applicable. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran claims entitlement to a TDIU, alleging that his service connected disabilities preclude him from securing or following a substantially gainful employment. See July 2010 VA 21-4138 Statement in Support of Claim. Total disability is considered to exist when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1) (2018). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more. If there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a) (2018). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). In the present case, the Veteran is currently in receipt of a 50 percent rating for PTSD; a 30 percent rating for CAD; a 20 percent rating for bilateral hearing loss; and a 10 percent rating for tinnitus. The Board notes that the Veteran has multiple service connected disabilities with at least one disability rated at 50 percent with a combined rating of 70 percent since August 2009 and 80 percent since January 18, 2018. The Veteran meets the percentage requirements for a schedular award of a TDIU criteria under 38 C.F.R. § 4.16(a). Therefore, a TDIU is warranted if the evidence shows that the Veteran has been unable to secure and follow a substantially gainful employment as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities or previous unemployability status. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (a), 4.19. After a full review of the record, the Board finds that this is the case here. Therefore, entitlement to a TDIU is granted. Educationally, the Veteran’s highest level of education is high school with some training in auto body repair and mechanics. He does not have any further education. He has previously worked as a hi-low driver for Ford Motor Company and the evidence suggest that he had an early retirement in November 2005. See July 2007 Medical Treatment Record - Non-Government Facility. In a June 2007 Psychosocial Assessment and Employability Evaluation, it was noted that the Veteran last worked on a full time basis in November 2005 for the Ford Motor Company and that he was a hi-low driver for 18 years on and off. Prior to that, he intermittently worked as an assembler on the line and that from 1970 to 1977, he worked in various laboring jobs as well as insurance sales. The assessor noted that the Veteran’s work would be considered light to medium, unskilled to semi-skilled and that he has no transferable skills to sedentary work. It was also noted that the Veteran’s symptoms of difficulty concentrating and completing tasks in a timely fashion, generalized anxiety, flashbacks/intrusive thoughts, insomnia, withdrawn and isolative nature and bouts of severe depression, causes severe social, personal and occupational impairment. See July 2007 Medical Treatment Record - Non-Government Facility. In a December 2009 VA PTSD Examination, the examiner described the effects of PTSD on occupational and social functioning as “…signs and symptoms were transient and mild and decreased ability to perform activities of daily living only during periods of significant stress”. See December 2009 VA Examination. A December 2010 VA examiner opined that the Veteran’s current service-connected disabilities are not sufficient without regard to other factors, to prevent him from performing the mental and/or physical tasks required to get or keep substantially gainful employment. The examiner’s rationale was that the Veteran is currently performing chores around the office (sic) and taking care of his wife who has Alzheimer’s. See December 2010 VA Examination. A correspondence from the Veteran’s treating physician Dr. U. T., stated that the Veteran is disabled and cannot work secondary to his heart condition. See August 2012 Medical Treatment Record - Non-Government Facility. A May 2016 VA examiner was unable to opine as to whether the Veteran’s hearing loss impacts his ability to work as a result of lack of objective documentation during examination. The examiner however noted that the service-connected tinnitus did not impact the Veteran’s ability to work. See May 2016 C&P examination. The January 2018 and January 2020 VA examiners opined that the service-connected CAD s/p stent placement with unstable angina does not impact the Veteran’s ability to function in an occupational environment. See January 2018 and January 2020 C&P Examinations. Based on the foregoing, the evidence is at least in equipoise as to whether the Veteran can secure and follow a substantially gainful employment. While the evidence of record shows that some VA examiners, including the January 2018 and January 2020 examiners, have found that the Veteran’s disabilities do not significantly impact his functional ability to work, the Board notes that these examiners in the proffering of their medical opinion, did not take into consideration the Veteran's lack of education beyond high school, and his work history. Pederson, 27 Vet. App. 276 (2015). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Reviewing the totality of the evidence, however, including the Veteran's current medical findings detailing the severity of his service-connected disabilities, the competent and credible lay assertions of unemployability due to limitations caused by the service-connected disabilities, and the cumulative objective evidence of record, the Board finds that the Veteran's service-connected disabilities, particularly his PTSD currently rated at 50 percent, his CAD currently rated at 30 percent and hearing loss currently rated at 20 percent, coupled with his educational/training background and employment history, preclude him from securing and following any substantially gainful employment. Accordingly, resolving all doubt in the Veteran's favor, the Board finds that   entitlement to TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.