Citation Nr: 21006696 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 15-10 691 DATE: February 4, 2021 ORDER For the period prior to February 11, 2020 entitlement to a rating in excess of 10 percent for coronary artery disease, status post myocardial infarction (CAD) is denied. For the period from February 11, 2020 to June 30, 2020 entitlement to a 60 percent rating, but no higher, for CAD is granted. For the period from July 1, 2020, entitlement to a rating in excess of 60 percent for CAD is denied. For the period prior to March 25, 2020, entitlement to a rating of total disability based on unemployability (TDIU) is denied. REMANDED Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. Prior to February 11, 2020, the Veteran’s CAD was manifest by workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, and required continuous medication 2. Since February 11, 2020, the Veteran’s CAD has been manifested by a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. 3. For the period prior to March 25, 2020, the Veteran’s service-connected disabilities did not prevent him from obtaining or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to February 11, 2020, the criteria for a rating in excess of 10 percent for CAD have not been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.303, 4.104, Diagnostic Code 7005. 2. For the period from February 11, 2020 to June 30, 2020, the criteria for a 60 percent rating, but no higher, for CAD have been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.303, 4.104, Diagnostic Code 7005. 3. For the period since July 1, 2020, the criteria for a rating in excess of 60 percent for CAD have not been met. 38 U.S.C. §§ 1110, 1155; 38 C.F.R. §§ 3.303, 4.104, Diagnostic Code 7005. 4. For the period prior to March 25, 2020, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to December 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The record reflects that in July 2018 the Veteran withdrew his request for a hearing. The appeal was last remanded by the Board in November 2020 for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s prior remand directives and thus, no further action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). As reflected on the title page, the issue of entitlement to a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, “staged” ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). Diagnostic Code 7005 assesses arteriosclerotic heart disease (CAD). A 10 percent rating is assigned where a workload greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where continuous medication is required. A 30 percent rating is assigned where a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent; or for more than one episode of acute congestive heart failure in the past year. A 100 percent rating is assigned where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; for an LVEF of less than 30 percent; or for chronic congestive heart failure. 38 C.F.R. § 4.104, Diagnostic Code 7005. One MET (metabolic equivalent) is defined as 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 cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). 1. For the period prior to February 11, 2020 entitlement to a rating in excess of 10 percent for CAD is denied. The Veteran has asserted that his METs level was between 5 and 7 in June 2011 and that he should be awarded a higher 30 percent rating for his service-connected CAD. A June 2011 private treatment record notes that the Veteran’s LVEF was 72 percent. June 2011, January 2012, July 2012, and January 2013 private treatment records note that the Veteran denied angina, orthopnea, PND, lower extremity edema, palpitations, syncope, and dyspnea. The records further note that the Veteran remained active without ill effect. The Veteran was afforded a VA examination for his hypertension in July 2013. The July 2013 VA examiner’s report noted that the Veteran had ischemic heart disease for which he took continuous medication. The VA examiner’s report als noted that the METs testing based on Veteran responses revealed that the lower level at which the Veteran reported symptoms was 7-10 METs with a report of angina. The report notes that “[t]his METs level has been found to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, jogging (6 mph).” An August 2013 private treatment record again notes that the Veteran denied angina, orthopnea, PND, lower extremity edema, palpitations, syncope, and dyspnea but that he had developed early fatigue that concerned him. An August 2013 private treatment record notes that the Veteran had a normal stress test that was stopped due to fatigue and had a normal electrocardiogram. It was noted that the Veteran achieved 10 METS. These tests revealed that the Veteran had short bursts of A. Fib and dyspnea and fatigue. June 2014, February 2015, and March 2016 private treatment records note that the Veteran had a history of CAD but denied angina, orthopnea, PND, lower extremity edema, palpitations, or syncope. These records further noted that the Veteran had a normal stress myocardial perfusion scan in July 2013 for symptoms of early fatigue and that his LVEF was estimated at 70 percent. January 2018 and January 2019 private treatment records note that the Veteran had an LVEF of 55 percent and that the Veteran denied angina, orthopnea, PND, lower extremity edema, palpitations, and syncope. The records also note that the Veteran was active working around his farm and cut wood without any ill effects. At no time prior to February 10, 2020 does the record reflect that the Veteran had an LVEF of less than 50 percent or a METs score of less than 7, as required for a higher 30 percent rating. The Board acknowledges the Veteran’s assertion that his METs were 5 to 7 resulting in dyspnea, fatigue, angina, dizziness, or syncope. However, the Board places more probative value on the objective medical testing of record that shows the only METs testing during this time period revealed a METs score of 7 to 10. In addition, the lowest LVEF measurement was 55 percent, which is greater than the 50 percent LVEF needed for a 30 percent rating. Accordingly, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent prior to February 10, 2020. 2. For the period from February 11, 2020 to June 30, 2020 entitlement to a 60 percent rating, but no higher, for CAD is granted. A February 2020 private treatment record again notes that the Veteran had LVEF at 55 percent and that he denied angina, orthopnea, PND, lower extremity edema, palpitation, or syncope. The record also noted that the Veteran had been active working around the farm and cutting wood without ill effects. The Veteran was afforded a VA examination in February 2020. The February 2020 VA examiner’s report notes that the Veteran had CAD that required continual medication for control. METs testing was also performed which revealed a workload of 10 Mets. However, interview based METs testing resulted in a METs level of 3 to 5 METs resulting in dyspnea, fatigue, and angina. The February 2020 VA examiner noted that interview based METs testing most accurately reflected the Veteran’s current functional level. The METs level due solely to the Veteran’s cardiac condition was estimated at 5 to 7 METs. The report explained that a METs level of 5 to 7 “has been found to be consistent with activities such as walking one flight of stairs, golfing (without cart), moving law (push mover), heavy yard work (digging).” The examiner further noted that LVEF is the most objective reflection of the Veteran’s current cardiac status and noted the Veteran’s 2013 LVEF of 72 percent. Lastly, the February 2020 VA examiner’s report noted that the Veteran’s heart disability impacted his ability to work and that the Veteran was a retired electrician. The examiner explained that CAD is negatively impacted by occupations requiring strenuous physical exertion. The Board notes that the LVEF of 72 percent relied upon by the February 2020 VA examiner appeared to be outdated because a February 2020 private treatment record noted an LVEF of 55 percent. In addition, the Board notes that METs testing ranged from 3 METs to 10 METs during this period. Therefore, after resolving all reasonable doubt in favor of the Veteran, the Board finds that during this period the Veteran experienced a workload as low as 3 METs resulting in dyspnea, fatigue, and angina. The Board also finds during this time the Veteran’s disability was not manifest by a workload of 3 METs or less or an LVEF of less than 30 percent. Accordingly, the Board finds that for the period from February 11, 2020 to June 30, 2020, the benefit of the doubt weights in favor of granting the Veteran a rating of 60 percent, but no higher, for his CAD. 3. For the period from July 1, 2020, entitlement to a rating in excess of 60 percent for CAD is denied. The Veteran was afforded another VA examination in July 2020 to evaluate the current level of impairment caused by his CAD. The report again noted that the Veteran required continuous medication for the control of his CAD. The July 2020 VA examiner’s report also noted that cardiac hypertrophy and cardiac dilatation were noted on a July 2020 echocardiogram. The July 2020 VA examiner’s report noted that the Veteran had a current LVEF of 45 percent and a workload of 3 to 5 METs resulting in dyspnea, fatigue, angina, and dizziness. Occupational impact was noted as the Veteran had difficulty with walking and standing for greater than 15 minutes, and had difficulty walking up one flight of stairs due to dyspnea, fatigue, dizziness. The Board thus finds that since June 1, 2020, the Veteran’s CAD has not been manifested by an LVEF of 30 percent or less nor a workload of less than 3 METs resulting in symptoms. Accordingly, the criteria for an award of higher, 100 percent rating for the Veteran’s CAD have not been met during this period. 4. For the period prior to March 25, 2020, entitlement to a TDIU is denied. In a July 2020 rating decision, the RO granted a TDIU effective March 25, 2020. A January 2015 buddy statement from H.D. asserted that the Veteran’s service-connected psychiatric and heart disabilities rendered him unemployable. A statement from the Veteran’s wife in June 2015 asserted that the Veteran had been unable to work in any employment for many years. In a June 2015 statement the Veteran asserted that he experienced unexpected flashbacks that impacted his ability to work. Lastly, on his March 2020 TDIU application, the Veteran explained that he worked in manual labor jobs his entire life and that he was forced to retire early. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extraschedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b). Prior to March 25, 2020, the Veteran was service connected for posttraumatic stress disorder (PTSD) at 10 percent prior to November 20, 2015, and 70 percent thereafter; CAD at 30 percent prior to February 11, 2020 and 60 percent thereafter (as reflected above); tinnitus at 10 percent, and bilateral hearing loss at noncompensable. Therefore, the Veteran has met the schedular criteria since November 20, 2015. January 2012, July 2012, January 2013, August 2013, January 2018, and February 2020 private treatment records all noted that the Veteran remained active. In addition, January 2018, January 2019, and February 2020 private treatment records noted that the Veteran remained active working around the farm and cutting wood without ill effects. An April 2015 VA treatment record noted that with treatment for his PTSD, the Veteran reported he was more active with household chores and enjoyed hobbies and other activities he used to enjoy. The Veteran was afforded a VA examination for his PTSD in August 2015. The August 2015 VA examiner’s report determined that the Veteran 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. The August 2015 VA examiner’s report further noted that the Veteran had coped and functioned well including maintain steady employment prior to retiring, getting along well with his wife and family, maintaining some social interaction, and being involved with church. The Board finds that the preponderance of the evidence is against awarding TDIU prior to March 25, 2020. The Board acknowledges the assertions from the Veteran and his friends and family. However, as explained above, although the Veteran retired as an electrician, he remained active and continued working on his farm performing tasks such as cutting wood. In addition, while the Veteran’s psychiatric sometimes impacted his employment, such symptoms were not so severe as to render him unemployable. The Board finds this evidence highly probative in determining the issue at hand. Because the record does not show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to March 25, 2020, the Board finds no reason to refer the Veteran’s claim to the Director of VA Compensation and Pension Service for extraschedular TDIU consideration for the period prior to November 20, 2015. The claim for entitlement to TDIU prior to March 25, 2020 must be denied. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded. The Veteran contends that his hypertension is secondary to his CAD and that his hypertension is also due to his service in Vietnam and exposure to herbicides. The Veteran was afforded a VA examination in July 2013, which was found inadequate in a November 2019 for the possible failure to consider the Veteran’s private treatment records. A new VA examination was obtained in January 2020. The January 2020 VA examiner’s report provides opinions addressing direct service connection and secondary aggravation; however, the report does not provide an opinion addressing secondary causation. Accordingly, remand is necessary for opinion addressing whether the Veteran’s hypertension was caused by his service-connected heart disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion, or schedule a VA examination, if necessary, to determine the nature and etiology of the Veteran’s hypertension. The Veteran’s claims file, to include a copy of this remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. The examiner is asked to provide an opinion addressing the following: Is it at least as likely as not (50 percent probability or more) that the Veteran’s hypertension is proximately due to or the result of the Veteran’s service-connected heart disability or any other service-connected disability? D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Palombi, 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.