Citation Nr: 21006847 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 15-39 331 DATE: February 5, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for service-connected right shoulder condition, for substitution benefit purposes, is denied. Entitlement to a disability rating in excess of 10 percent for service-connected hypertension, for substitution benefit purposes, is denied. Entitlement to a 60 percent disability rating for hypertensive heart disease, for substitution benefit purposes, is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU), for substitution purposes, is granted. FINDINGS OF FACT 1. During the appeal period prior to his death, the Veteran’s right shoulder condition did not manifest with limitation of motion to 25 degrees from his side. 2. During the appeal period prior to his death, the Veteran’s hypertension did not manifest in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 3. During the appeal period prior to his death, the Veteran manifested hypertensive heart disease with a left ventricular ejection fraction of 38 percent. 4. During the appeal period prior to his death, the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment consistent with his educational and vocational history. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for service-connected right shoulder condition, for substitution benefit purposes, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.71a, Diagnostic Code (DC) 5201 (2020). 2. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected hypertension, for substitution benefit purposes, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.104, DC 7101 (2020). 3. The criteria for entitlement to a disability rating in excess of 60 percent for hypertensive heart disease, for substitution benefit purposes, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.104, DC 7101, Note (3), DC 7007 (2020). 4. The criteria for entitlement to TDIU, for substitution benefit purposes, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1977 to February 1980. He died in July 2011. The Appellant is the Veteran’s surviving spouse. The Board of Veterans’ Appeals (Board) notes that the Appellant is appropriately recognized as the substitute-claimant in this case. 38 U.S.C. § 5121A. This matter comes before the Board on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey (Agency of Original Jurisdiction (AOJ)). The Appellant testified at a video conference hearing before the undersigned in January 2019. A transcript of the proceeding is of record. This matter was most recently before the Board in July 2020. At that time, the Board remanded on these issues to seek outstanding treatment records. Notably, the Board determined it was missing (1) VA treatment records between May 23, 2011 and July 20, 2011, and (2) treatment records from Dr. J.V.A. and Dr. O.Y. for the period spanning February 2010 through July 2011. A review of the file reflects that the Appellant assisted in obtaining the private treatment records and they were associated with the file in October 2020. In regard to the VA treatment records, the Supplemental Statement of the Case (SSOC) dated October 2020 noted that the treatment records already associated with the record represented “all available VA treatment reports for the Veteran.” The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that, by letter dated May 13, 2013, the AOJ notified the Appellant of a denial of accrued benefits for service connection claims of posttraumatic stress disorder (PTSD) and carpal tunnel syndrome. She was provided appellate rights and VA Form 4107 to appeal the decision. These claims were not appealed, and the Board has no jurisdiction to review these claims. The Board next notes that evidence added to the record reflects that the Veteran manifested hypertensive heart disease during his lifetime. The criteria of DC 7101 instructs that separate ratings are to be provided for both hypertension and hypertensive heart disease. See 38 C.F.R. §4.104, DC 7101, Note (3). Thus, the issue of the appropriate rating for hypertensive heart disease is deemed before the Board as part of the increased rating claim for hypertension. The Board also notes that the record reflected the Veteran’s unemployability, in part, due to hypertension during the appeal period. As such, the issue of entitlement to TDIU was reasonably raised and is currently before the Board. Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126–27 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to a disability rating in excess of 30 percent for service-connected right shoulder condition, for substitution benefit purposes The Veteran’s right shoulder condition is evaluated pursuant to 38 C.F.R. § 4.71a, DC 5299-5201. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27. Disabilities of the shoulder and arm are rated under DCs 5200 through 5203. The Veteran’s right shoulder condition is evaluated pursuant to 38 C.F.R. § 4.71A, DC 5201. The right upper extremity is the dominant extremity. The Federal Circuit has held that the plain language of 38 C.F.R. § 4.71(a) confirms that a veteran is only entitled to a single disability rating under DC 5201 for each arm that suffers from limited motion at the shoulder joint. The diagnostic code does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to “limitation of motion of” the arm. Yonek v. Shinseki, 722 F.3d 1355 (Fed. Cir. 2013). DCs 5200-5203 distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69. DC 5201 provides a 20 percent evaluation for limitation of motion of the major arm if it is limited to shoulder level, and a 30 percent rating if it is limited midway between the side and shoulder level. A maximum 40 percent rating is warranted if motion is limited to 25 degrees from the side. See 38 C.F.R. § 4.71a, DC 5201. DC 5202 provides a 20 percent evaluation for malunion of the humerus with a moderate deformity, and 30 percent for a marked deformity of the major humerus. A 20 percent evaluation is also warranted for recurrent dislocation of the major humerus at the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level, and 30 percent for frequent episodes and guarding of all arm movements. Impairment of the major humerus is rated at 50 percent if there is a fibrous union, 60 percent if there is nonunion of false flail joint, and 80 percent if there is loss the head of humerus, with flail shoulder. See 38 C.F.R. § 4.71a, DC 5202. DC 5203 provides for a 10 percent rating for malunion of the clavicle or scapula or nonunion of the clavicle or scapula without loose movement. A 20 percent rating is warranted for nonunion of the clavicle or scapula with loose movement or dislocation of the clavicle or scapula. DC 5203 provides that the shoulder disability may alternatively be rated on impairment of function of the contiguous joint. Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees. 38 C.F.R. § 4.71, Plate I. The evidence of record as it pertains to the Veteran’s right shoulder condition prior to his death is extremely limited, despite obtaining all known treatment records. At the time of his death, the Veteran’s right shoulder was evaluated as 30 percent disabling. In March 2011, he received a VA examination for his right shoulder; the examiner noted there had been no treatment for this ailment and his previous examination took place in June 2009. The Veteran reported that most days, his pain was a 10/10 which was made worse with lifting. The examiner diagnosed his right shoulder with chronic right rotator cuff tear and acromioclavicular joint osteoarthritis. Physical examination revealed the following: “Demonstrated no gross deformity. No erythema. No edema. There is tenderness to palpation over the superior anterior aspect of the shoulder, particularly around the AC joint. Right shoulder range of motion: forward flexion 0-85 degrees associated with pain at the end of range of motion. Active abduction 0-80 degrees associated with pain at the end of range of motion…There is no evidence of fatigue, weakness, or lack of endurance. Positive impingement sign. Positive empty can test. Apprehension and relocation tests are equivocal. Rotator cuff strength is 4/5 on the right side as compared to the left side.” It was further noted that the Veteran failed to report for an x-ray assessing his right shoulder condition as part of the examination. VA treatment records remained largely silent for his right shoulder condition. However, an entry dated April 2011 includes a note stating, “[the Veteran] came in for first time complaining of tear to the right shoulder with numbness to the first, second, and third finger of the right hand.” The Veteran’s private treatment records include a diagnosis of osteoarthritis, but do not appear to contain entries noting treatment for a right shoulder condition. Based on the available evidence of record, the Board finds that the Veteran’s right shoulder condition does not warrant a disability rating in excess of 30 percent. The file does not contain evidence suggesting any issues pertaining to his clavicle, scapula, or humerus; as such, DC 5203 and 5202 are inapplicable. Furthermore, the Veteran’s abilities during the March 2011 VA examination suggest his arm did not experience limitation of motion 25 degrees from the side; indeed, forward flexion was possible to 85 degrees and abduction to 80 degrees. There is no lay description of limited motion approximating 25 degrees from side even during flares. Based on these findings, the Veteran’s right shoulder disability is properly evaluated as 30 percent disabling and the Appellant’s claim for an increased disability rating must be denied. As noted in the INTRODUCTION, the Board has no jurisdiction over the previously denied claim of service connection for carpal tunnel syndrome and symptoms attributable to this diagnosis. Entitlement to a disability rating in excess of 10 percent for service-connected hypertension, for substitution benefit purposes Entitlement to a disability rating for hypertensive heart disease, for substitution benefit purposes Hypertension is evaluated pursuant to DC 7101, hypertensive vascular disease (hypertension and isolated systolic hypertension). DC 7101 provides that a 10 percent rating is assigned for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. A 60 percent rating is assigned for diastolic pressure predominantly 130 or more. Prior to his death, the Veteran’s hypertension was evaluated as 10 percent disabling. The Veteran had filed his claim for an increased disability rating for his service-connected hypertension in February 2011. Given that the issue on appeal stems from a non-initial increased rating claim, the period on appeal dates back to the one year prior to the date of the non-initial increased rating claim, i.e. February 2010. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). The record contains a multitude of treatment documents listing his blood pressure (BP) over the years. During the period on appeal (i.e. February 2010 through his death), the Veteran’s medical treatment records documented the following BP readings: DATE BP READING February 1, 2010 160/90 April 1, 2010 130/80 July 20, 2010 140/80 March 8, 2011 180/98, 185/100, 144/90 April 5, 2011 184/107 April 6, 2011 167/97 April 28, 2011 153/98 May 5, 2011 153/96, 150/99, 138/80, 136/95,141/86 June 20, 2011 140/90, 145/92, 156/85, 141/89 The Appellant contends that the Veteran’s hypertension itself warrants a higher disability rating because it contributed to his cause of death (indeed, the Appellant is in receipt of service connection for the Veteran’s cause of death). She points to April 2011 as proof of the Veteran’s deteriorating condition. On April 5 and 6, 2011, he presented to the emergency room due to nosebleeds, which were thought to be caused by his hypertension. A letter from Dr. O.Y. dated July 2011 reported, “diastolic reading has been above normal for a couple of months over 130 which causes nosebleeds and weakness…also causes dizzy spells.” However, the evidence currently of record does not support the finding that the Veteran’s hypertension warrants a disability rating in excess of 10 percent. The Veteran was referred to Dr. O.Y. by his primary care physician, Dr. J.V.A. Neither physician’s available records include diastolic pressures predominantly 110 or more or systolic pressures predominantly 200 or more. While Dr. O.Y. stated that the Veteran’s diastolic readings were over 130, the Board has no evidence before it to conclude how often these readings occurred, whether they were predominant or whether they required additional medication. The Board acknowledges that the Veteran did suffer from nosebleeds as reflected in the record and noted by Dr. O.Y.; however, even at the time he presented to the hospital with a nosebleed that would not stop, his BP was 184/107 – a reading still not high enough to warrant a 20 percent disability rating. The Board finds that the frequency, severity, and duration of the Veteran’s elevated blood pressure readings during the period on appeal did not rise to the level that warrants a 20 percent disability rating based on the evidence presented to the Board. The Appellant has specifically argued that a higher rating should be assigned based upon the amount of medications required to control his blood pressure. However, the evaluation for hypertension is based not on the amount of medication required to control it, but on the level of control that can be achieved. See McCarroll v. McDonald, 28 Vet. App. 267 (2016) (citing 62 Fed. Reg. 65,215). Nonetheless, the Board notes that the Veteran’s autopsy resulted in a diagnosis of hypertensive heart disease with left ventricular hypertrophy. The criteria of DC 7101 specifically instructs that hypertension is evaluated separately from hypertensive heart disease. 38 C.F.R. § 4.104, DC 7101, Note (3). DC 7007, which provides the rating criteria for hypertensive heart disease, provides a 10 percent rating where there is a workload of greater than 7 metabolic equivalents (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 of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or with evidence of cardiac hypertrophy or dilatation on electro-cardiogram, echocardiogram, or x-ray. A 60 percent rating is assigned where there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or with left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent disability rating is provided for chronic congestive heart failure; or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or with left ventricular dysfunction with an ejection fraction of less than 30 percent. The Veteran underwent a myocardial perfusion study in 2008 which measured a left ventricular ejection fraction of 38 percent. A VA examiner in 2008 confirmed the ejection fraction of 38 percent and estimated a METs level of 6. The Board finds no evidence of any improvement since the myocardial perfusion study. This meets the criteria for a separate 60 percent rating under Diagnostic Code 7007. However, the record does not contain any lay or medical evidence suggesting chronic congestive heart failure, a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or a left ventricular dysfunction with an ejection fraction of less than 30 percent. Thus, the criteria for a 100 percent rating under Diagnostic Code 7007 were not met for any time during the appeal period. TDIU For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. TDIU may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 38 C.F.R. § 4.16(a) provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with all disabilities combining to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran met the schedular requirements for the entire appeal period. In determining unemployability, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question 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) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Being unable to secure and follow a substantially gainful occupation is defined as having an 1) an economic component of 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 and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.) Here, the Veteran is service-connected for hypertensive heart disease rated as 60 percent disabling, right shoulder disability rated as 30 percent disabling and hypertension rated as 10 percent disabling. The available evidence of record reflects that the Veteran had a military occupational specialty as a general warehouseman. He had some educational training in accounting, but appears to have been employed as a truck driver with the need for occasional heavy lifting. A March 2011 VA examination report noted that the Veteran had lost his truck driving job due to uncontrolled blood pressure and was currently unemployed. This examiner noted that the most recent echocardiogram revealed an ejection fraction of 38 percent with a METs level of approximately 6. The examiner noted that the Veteran was unemployable as a truck driver due to persistently elevated blood pressure and was attempting to pursue a more sedentary job. He had previously performed some type of office work 2 years previous. As noted above, in this time period, the Veteran had been experiencing hypertensive episodes with nose bleeds, weakness and dizziness. He passed away in July 2011, in part, due to hypertensive heart disease. Considering the entire record, in light of the combined effects of his service-connected disabilities including hypertensive episodes with weakness and dizziness with a left ventricular ejection fraction of 38 percent in light of being precluded medically from employment as a truck driver, and resolving all reasonable doubt in the Appellant’s favor, the Board finds that the Veteran’s service-connected disabilities prevented him from maintaining substantially gainful employment consistent with his educational and vocational background during the appeal period. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’..., the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”) Therefore, the claim for TDIU is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria A. Banis, 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.