Citation Nr: 21006716 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-41 343 DATE: February 5, 2021 ORDER Entitlement to service connection for chronic fatigue syndrome is denied. Entitlement to an increased initial evaluation for depression, rated 10 percent prior to February 21, 2017 is denied. Entitlement to an increased evaluation for depression, rated 50 percent from February 21, 2017 is denied. Entitlement to an initial disability evaluation in excess of 10 percent for ischemic heart disease, status post coronary artery bypass grafting, with residual surgical scar from October 1, 2011 and prior to August 14, 2012, is denied. Entitlement to an evaluation in excess of 30 percent for ischemic heart disease, status post coronary artery bypass grafting, with residual surgical scar from August 14, 2012 and prior to September 1, 2016 is denied. Entitlement to an evaluation in excess of 60 percent for ischemic heart disease, status post coronary artery bypass grafting, with residual surgical scar from September 1, 2016 and prior to November 2, 2019 is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current disability of chronic fatigue syndrome. 2. Prior to February 21, 2017, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. From February 21, 2017, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 4. From October 1, 2011 and prior to August 14, 2012 the Veteran’s service-connected heart disorder was not manifested by a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 5. From August 14, 2012 and prior to September 1, 2016, the Veteran’s service-connected heart disorder was not manifested by a 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. 6. From September 1, 2016, METs testing shows the Veteran did not develop these symptoms 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 7. The criteria for service connection for chronic fatigue syndrome are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for a disability rating in excess of 10 percent for depression have not been met, prior to February 21, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 9. The criteria for a disability rating in excess of 50 percent for depression have not been met, from February 21, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 10. The criteria for rating in excess of 10 percent for ischemic heart disease, status post coronary artery bypass grafting, with residual surgical scar have not been met, beginning October 1, 2011 and prior to August 14, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 11. The criteria for a rating in excess of 30 percent for ischemic heart disease, status post coronary artery bypass grafting, with residual surgical scar have not been met, beginning August 14, 2012 and prior to September 1, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 12. The criteria for a rating in excess of 60 percent for ischemic heart disease, status post coronary artery bypass grafting, with residual surgical scar have not been met, beginning September 1, 2016 and prior to November 2, 2019. 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 from March 1966 to December 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant had requested a hearing before the Board, which had originally been scheduled for May 3, 2018. In February 2018, the Veteran asked to continue the appeal without a hearing. In January 2019, the Board issued a decision remanding the case for additional development. The January 2019 Board remand included the issues of entitlement to service connection for a right eye disability, acute stroke, peripheral artery disease of the lower extremities, and right-side weakness. A July 2020 rating decision granted service connection for all of these claims. As that decision granted in full the benefit sought by the Veteran, they are no longer on appeal. The RO has substantially complied with the remand order and the issues of service connection for chronic fatigue syndrome and increased ratings for depression and ischemic heart disease have returned to the Board. Service Connection Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. 1. Entitlement to service connection for chronic fatigue syndrome is denied. The Veteran requested service connection for chronic fatigue. The Veteran reported onset of chronic fatigue in 2011 resulting in weakness and low endurance. The Veteran reported debilitating fatigue lasting 24 hours or longer after exercise, along with forgetfulness, and that the symptoms restrict daily activities by less than 25 percent. The preponderance of the evidence is against a finding that the Veteran has a current disability of chronic fatigue syndrome for VA compensation purposes. While the Veteran is competent to report subjective symptoms, the Veteran is not otherwise competent to establish the presence of a disability. A diagnosis of chronic fatigue syndrome requires specialized medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans’ Court). In Jandreau, the Federal Circuit specifically determined that a layperson is not considered competent to testify when the issue was medically complex, as is the question of establishing a diagnosis of chronic fatigue syndrome. An October 2014 VA examiner found that the Veteran does not have a diagnosis of a central nervous system condition, including chronic fatigue syndrome. A review of the treatment notes does not show a diagnosis. The November 2019 VA examiner found that the Veteran does not currently have chronic fatigue syndrome. The VA examiner further found that fatigue is a symptom of the Veteran’s service-connected ischemic heart disease. In the absence of a current disability, the criteria for establishing service connection for chronic fatigue syndrome are not satisfied. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.310.   Increased Ratings Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 2. Entitlement to an increased evaluation for depression is denied. The October 2013 Rating Decision on appeal awarded service connection for depression (also claimed as anxiety) and assigned a 10 percent rating effective July 17, 2013. A subsequent April 2017 Rating Decision assigned a 50 percent rating effective February 21, 2017. The Veteran continued his appeal but did not assert any specific contentions. Major depressive disorder is rated under 38 C.F.R. § 4.130, Code 9434. The VA Schedule rating formula for mental disorders reads, in pertinent part, as follows: 100 percent rating (the maximum schedular rating) - 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. 70 percent - 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 a work like setting); inability to establish and maintain effective relationships. 50 percent - 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; difficulty in establishing and maintaining effective work and social relationships. 30 percent - 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). 10 percent - 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 continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9434. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign a rating 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The United States Court of Appeals for the Federal Circuit held that 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. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in the rating criteria are not exhaustive, but rather, serve as examples of the type and degree of symptom, 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. That is, the regulation requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas. Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9434. Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). The Board recognizes that there is no formula to follow when assigning ratings. Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9434 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's psychiatric disorder that affect the level of occupational and social impairment. Id. While particular symptoms associated with a higher rating may be present during pertinent portions of the appeal period, such symptoms are exemplars to aid in characterizing the degree of social and occupational impairment. Thus, while certain symptoms might be present on isolated occasions, such symptoms must produce the contemplated levels of occupational and social impairment to provide a basis for increased rating assignments in any particular period. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that the veteran's impairment must be due to those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Prior to February 21, 2017, the preponderance of evidence is against the finding that the Veteran’s psychiatric disorder warrants a 30 percent, or higher, disability rating. In April 2013, just prior to the period on appeal, it was noted the Veteran had no neuro-psych complaints. A September 2013 VA mental disorders examination found the Veteran had depressive disorder and that he reported that his medical issues prevented him from engaging in activities he used to like. The Board notes that the Veteran’s responses noted by the examiner to the symptom checklist were depressed mood, anxiety, suspiciousness, chronic sleep impairment, memory loss for names of close relatives, own occupation, or own name, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control, and persistent delusions or hallucinations. The Board notes that some of the symptoms noted (depressed mood, anxiety, suspiciousness, chronic sleep impairment) are listed in the 30 percent rating criteria; some (flattened affect, impaired judgment, disturbances of motivation and mood) are listed in the 50 percent rating criteria; some (difficulty in adapting to stressful circumstances, including work or a worklike setting, impaired impulse control) are listed in the 70 percent rating criteria; and two (memory loss for names of close relatives, own occupation, or own name and persistent delusions or hallucinations) are listed in the 100 percent rating criteria. However, the Board does not find that a higher rating is warranted based on the Veteran’s self-reported symptoms as at that time the examiner assessed that the Veteran’s symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. Further, there is no support for a higher rating in the Veteran’s statements or the other evidence of record. The examiner assessed the depressive disorder as a side effect of the beta blocker the Veteran was taking for his service-connected heart disorder. The examination report noted that the Veteran was not taking medication for a mental health disorder, had not been in counseling for the disorder, and had not been hospitalized for mental health reasons. The Beck Depression Inventory was administered and the Veteran’s results were indicative of minimal depression. The examiner concluded that based on the Veteran’s responses to the symptom checklist, history, behavioral observations, his results on the Beck Depression Inventory, “it is my professional opinion” that the Veteran had “minimal depression.” Further, the examiner noted that “[w]ith respect to unemployability, the Veteran’s low score on the [psychological testing] would not prevent [him] from holding a paid work position.” Therefore, despite the severity of some of the Veteran’s self-reported symptoms, which might suggest a higher rating is warranted for this period, the preponderance of the evidence, including the examiner’s assessment as to the overall severity of the Veteran’s psychiatric disorder, is against a finding that a higher rating is warranted before February 21, 2017. A November 2013 VA treatment record noted that the Veteran reported he was recently diagnosed with depression and that his health problems had impacted his mood. He reported worrisome thoughts and decreased energy and motivation. After February 21, 2017, the preponderance of the evidence is against a finding that the Veteran’s psychiatric disorder warrants a 70 percent, or higher, disability rating. The April 2017 VA examination showed the Veteran’s severity of depression was assessed as moderate. He reported living with his wife in a happy marriage and having good family relationships. His wife reported he had memory dysfunction and mood changes including easy anger. The Veteran was not on psychiatric medication, not in counseling, and had not had a psychiatric crisis since his last exam. The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Treatment notes show that in March 2018, the Veteran had a negative screen for depression. He also denied depression and anxiety. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a rating in excess of 10 percent prior to February 21, 2017 and 50 percent as of February 21, 2017. As the preponderance of the evidence is against the claim for this period, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. Accordingly, a higher rating for these periods is not warranted. 3. Entitlement to an increased evaluation for ischemic heart disease, status post coronary artery bypass grafting, with residual surgical scar is denied. A July 13, 2012 Rating Decision granted service connection for ischemic heart disease. A September 14, 2012 Rating Decision assigned a 100 percent rating from September 2, 2011, a 10 percent rating from October 1, 2011, and a 30 percent rating from August 14, 2012. A subsequent January 2017 Rating Decision assigned a 60 percent rating effective September 1, 2016, the date the claim was received. A July 15, 2020 Rating Decision assigned a 100 percent rating effective November 2, 2019. After the July 2020 rating decision was issued, the Veteran continued his appeal but did not assert any specific contentions. The rating for the Veteran’s service-connected ischemic heart disease has been assigned under 38 C.F.R. § 4.104, DC 7005 for arteriosclerotic heart disease. Under DC 7005, a 10 percent rating is warranted when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication is required. A 30 percent rating is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 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. 38 C.F.R. § 4.104, Note (2). The preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted from October 1, 2011, to August 13, 2012, as the evidence does not reflect that due to the Veteran’s service-connected heart disorder a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. An October 2011 private medical assessment found the Veteran had chronic congestive heart failure (CHF) “Class II-III.” The December 2011 VA examination assessed the Veteran with a METs level of 5-7, consistent with activities such as golfing, mowing lawn, and heavy yard work. However, the Veteran’s METs level was attributed to his peripheral vascular disease, COPD, and deconditioning rather than his ischemia. The Veteran’s left ventricular ejection fraction was 75% based on a June 2011 test. Further, the 2011 VA examiner specifically found no evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The Veteran’s ischemic heart disease was found to not have an impact on his ability to work. The examiner noted the “Class II-III CHF” noted by the private provider and said the notation was “not supported by any available clinical data as evidenced by normal systolic and diastolic function, normal ejection fraction, lack of supportive clinical exam findings, chest x-ray findings and by the Veteran’s description of symptoms.” For these reasons, the Board finds the VA examination report highly probative and the private assessment in October 2011 to be of little to no probative value. The preponderance of the evidence is against a finding that a rating in excess of 30 percent is warranted from August 14, 2012, to August 31, 2016, as the evidence does not reflect that due to the Veteran’s service-connected heart disorder a 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. In August 2012, a private treatment provider assessed the Veteran’s METs level as between 1 to 3, noting his lower extremity arterial disease. The provider stated the limitations on the Veteran’s ability to walk are due to peripheral arterial disease and his COPD, which is chronic and advanced. His left ventricular ejection fraction was within normal range. The August 2012 VA examiner found the Veteran’s METs level was 3-5. His ejection fraction was 55-65%. The VA examiner also found the Veteran’s METs level was attributable to his peripheral vascular disease, COPD, and deconditioning rather than his ischemia. Walking was noted to be limited by low back pain. The examiner specifically addressed the lower METs results in the private records concluded that the METs level was not due to the service-connected heart disability. The Board finds the opinion highly probative as it is based on the evidence of record and provides a thorough rationale. For these reasons, a rating in excess of 30 percent is not warranted despite the METs results in the private treatment records and the VA examination report. For the period from September 1, 2016, to November 1, 2019, the preponderance of the evidence is against a finding that any of the criteria for the 100 percent rating were met: chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. The December 2016 VA examination showed the Veteran had a left ventricular ejection fraction of 59% and a METs level of 3-5, which has been found to be consistent with activities such as light yard work, mowing lawn, and brisk walking. The examiner found that the Veteran had not had congestive heart failure. The Board finds that the preponderance of the evidence is against finding that any increased disability rating is warranted for the Veteran’s ischemic heart disease at any stage on appeal. The Board has considered the doctrine of affording the benefit of the doubt to the appellant but does not find the evidence is of such approximate balance to warrant its application. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sowden, 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.