Citation Nr: 21007188 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 19-02 468 DATE: February 8, 2021 ORDER Entitlement to an initial 60 percent rating for coronary artery disease (CAD), exclusive of a period of temporary total evaluation, but no higher, is granted, from January 24, 2017, subject to controlling regulations governing the payment of monetary awards. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder, depression and anxiety, is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA) and sleep disturbances, to include as secondary to service-connected CAD (with intermediary obesity), is remanded. Entitlement to a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Exclusive of a period of temporary total rating, the Veteran's CAD symptoms more nearly approximated one episode of acute congestive heart failure in the past year and left ventricular dysfunction with an ejection fraction of 30 to 50 percent; but did not more nearly approximate chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 2. The evidence is at least evenly balanced as to whether the Veteran’s current acquired psychiatric disability, diagnosed as adjustment disorder, depression, and anxiety, is related to service. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 60 percent, but no higher, for CAD have been met from January 24, 2017. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code (DC) 7005. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for an acquired psychiatric disability, diagnosed as adjustment disorder, depression and anxiety, have been met. 38 U.S.C. §§ 1110, 1154(b), 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1963 to June 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for sleep apnea and anxiety. The RO also granted a temporary total rating for the Veteran's service-connected CAD from November 13, 2017 to March 1, 2018 and continued a 30 percent rating thereafter. By way of history, in an April 2017 rating decision the RO denied service connection for insomnia (claimed as sleep disorder) and granted the Veteran service connection for CAD with an evaluation of 30 percent, effective January 24, 2017. In January 2018 the Veteran filed a claim requesting a higher rating for his CAD following his coronary artery bypass surgery and also claimed service connection for sleep apnea and anxiety. As explained below, the prior, January 24, 2017 claim remained pending. In October 2018 the Veteran filed a notice of disagreement (NOD) and in January 2019 the RO issued a statement of the case (SOC). In January 2019 the Veteran filed a substantive appeal (via VA Form 9). CAD A claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156(b) to determine the character of evidence submitted within the one-year appeal period following issuance of a rating decision. Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). The Federal Circuit similarly held in Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011), that 38 C.F.R. § 3.156(b) requires VA to determine whether subsequently submitted evidence constituted new and material evidence relating to an earlier claim. The holdings in Beraud and Bond are applicable in the present case as the RO failed to address VA treatment records received in January 2018 which pertain to the Veteran’s claim for sleep apnea and a February 2018 VA examination which pertains to the Veteran's evaluation for his service-connected CAD. The Board finds, therefore, that the Veteran's January 2017 claim remained pending at the time he filed a later January 2018 claim for service connection for sleep apnea and a higher rating for service-connected CAD. The Veteran’s CAD is currently rated under 38 C.F.R. § 4.104, DC 7005. The Veteran contends that he is entitled to a higher initial rating because his CAD and its associated symptoms are more severe than contemplated by the assigned rating. Specifically, in a January 2021 brief the Veteran, through his representative, stated that this heart condition causes him dyspnea, fatigue, cardiac arrhythmia, hypertrophy, and severe functional limitations. The Veteran argued that due to the pervasive nature of the Veteran’s symptomatology his CAD more closely approximates an evaluation of 60 percent. For the reasons specified below, the Board finds that the Veteran is entitled to an initial rating of 60 percent, but no higher, for CAD, from January 24, 2017. For rating diseases of the heart, 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 rating, 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). Under DC 7005, a 30 percent rating is assigned when a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation. A 60 percent rating is assigned for more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure; or a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. A February 2018 VA examiner noted that the Veteran underwent coronary artery bypass surgery. The VA examiner noted a left ventricular ejection fraction of 57 percent with an abnormal left ventricle wall motion. A November 2017 operative report details the Veteran’s coronary artery bypass surgery and his private physician noted acute systolic congestive heart failure. Based on results of an interview-based METs test, the Veteran could perform a workload greater than 5 METS but not greater than 7 METS. The VA examiner noted the Veteran experienced dyspnea and fatigue. In January 2017 private treatment note indicates that the Veteran underwent a stress echocardiogram and was assigned a workload of 10.4 METs with an ejection fraction of 73 percent. A February 2017 VA examiner noted that the Veteran was diagnosed with CAD and acute, subacute, or old myocardial infarction. The February 2017 VA examiner noted that the Veteran had a left ventricular ejection fraction of 59 percent. Based on results of an interview-based METs test, the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. The VA examiner noted that the Veteran’s heart condition does not impact his ability to work. A July 2017 private treatment note indicates that the Veteran experienced, shortness of breath, near syncope with a left ventricle ejection fraction of 50 to 55 percent. There is evidence of symptoms listed in the criteria for a 30 percent rating and symptoms listed in the criteria for a 60 percent rating. The Veteran’s interview-based METs results at most warrant a 30 percent rating. The Veteran’s treatment records indicate that the Veteran has experienced dyspnea, angina, syncope, and fatigue at various times throughout the appeal period. A November 2017 private physician noted that the Veteran experienced acute congestive heart failure which is listed in the criteria for a 60 percent rating. Throughout the appeal period, the Veteran’s left ventricular dysfunction has exhibited an ejection fraction of 57 percent in February 2018, 50 to 55 percent in July 2017, 59 percent in February 2017, and 73 percent in January 2017. When a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Therefore, the above evidence, including ejection fraction close to 50 percent, is approximately evenly balanced as to whether the symptoms more nearly approximate the criteria for a 60 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 60 percent rating is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The evidence does not suggest that the Veteran's CAD warrants a rating greater than 60 percent. At no time during that period did the Veteran suffer from chronic congestive heart failure, register a METs level equal to or less than 3 on either an interview or exercise-based METs test, or present with an left ventricular ejection fraction of less than 30 percent. Therefore, the Veteran's CAD does not more closely approximate a 100 percent rating. See 38 C.F.R. § 4.104, DC 7005. For the foregoing reasons, an initial rating of 60 percent, but no higher, is warranted for the Veteran's CAD from January 24, 2017. As the preponderance of the evidence is against a rating higher than 60 percent, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board notes that in his October 2018 NOD, the Veteran’s attorney also checked the box indicating that he was challenging the effective date of award. It is not clear from the document or the evidence as a whole the nature of this challenge. In the March 2018 rating decision challenged, the rating was continued at 30 percent and thus no effective date was assigned, other than the November 13, 2017 effective date of the temporary total rating. To the extent that the Veteran challenges the effective date of the temporary total rating, and this issue was implicitly addressed in the SOC, the Board will address it below. The Board also notes that it is granting a 60 percent rating effective the January 24, 2017 effective date of the grant of service connection, which is the date of claim and earliest possible effective date. There is no evidence or argument in support of an earlier effective date for the grant of service connection, even if such a challenge could be made without violating the rule against freestanding earlier effective date claims. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. §§ 4.15, 4.16(b). In the case of disability which is temporary in nature, such as that period of convalescence following surgery, the governing regulation provides for temporary total disability ratings during convalescence. 38 C.F.R. § 4.30. The Veteran is currently in receipt of a temporary total rating from November 13, 2017 to March 1, 2018. A temporary total disability rating will be assigned under 38 C.F.R. § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or (3) the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability results in 1 of the 3 scenarios just noted. 38 C.F.R. § 4.30(a). Convalescence is defined as "the stage of recovery following an attack of disease, a surgical operation, or an injury." Felden v. West, 11 Vet. App. 427, 430 (1998) (citing Dorland's Illustrated Medical Dictionary, p. 374 (28th ed. 1994)). Recovery has been defined as "the act of regaining or returning toward a normal or healthy state." Id. (citing Webster's Medical Desk Dictionary 606 (1986)). The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § 4.30. On the October 2018 NOD the Veteran contends that he is entitled to an earlier effective date prior to November 13, 2017 for the temporary total rating assigned following his coronary artery bypass surgery. For the following reasons, the Board finds that an effective date prior to November 13, 2017 for a temporary total rating is not warranted. On January 4, 2018 the Veteran submitted a claim for his coronary artery bypass surgery. A November 2017 private treatment note indicates that the Veteran received treatment for coronary artery bypass surgery on November 13, 2017. The provisions of 38 C.F.R. § 4.30 make clear that the temporary total rating should begin the date of hospital admission. Here, the Veteran was granted a temporary total rating based on his coronary artery bypass surgery. As noted above, VA regulations provide that a temporary total rating may be assigned effective the date of hospital admission. There is no legal basis under the applicable VA laws and regulations pertaining to convalescent ratings for the assignment of an effective date for convalescence prior to the date of hospital admission/treatment. The Veteran does not contend, nor does the evidence reflect, that the Veteran’s coronary artery bypass surgery was performed prior to November 13, 2017. While the Board is sympathetic to the Veteran, it is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). Those laws and regulations indicate that the earliest effective date for a convalescence rating under 38 C.F.R. § 4.30 is "the date of hospital admission or outpatient treatment." Because an effective date may not be assigned prior to the date of the Veteran's surgery, the claim seeking entitlement to an effective date prior to November 13, 2017 must be denied. The Board has considered the Veteran’s claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). 3. Acquired psychiatric disability, to include adjustment disorder, depression and anxiety Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Even though the Veteran only applied for entitlement to service connection for anxiety, a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). In other words, the Board will broaden the Veteran’s claim and consider all psychiatric diagnoses raised by the record. An August 2018 VA treatment note indicates that the Veteran is diagnosed with adjustment disorder with mixed anxiety and depressed mood. Thus, a current acquired psychiatric disability has been demonstrated. In a January 2021 brief the Veteran, through his representative, stated that his acquired psychiatric disorder is the direct result of combat stressors in Vietnam. The Veteran's service treatment records (STRs) were silent as to any diagnosis or treatment for mental health problems while on active duty. However, the Veteran's military personnel records contain a record titled "Combat History - Expeditions" stated that in 1965 the Veteran was involved in operations while stationed in Da Nang, Vietnam. Although the Veteran did not receive a medal specifically indicating combat, a combat determination must be made on a case by case basis. VAOPGCPREC 12-99 (October 18, 1999). A finding that a veteran engaged in combat with the enemy under 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Id. Evidence to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Taken together, the Veteran’s military personal records and his statements confirm that he engaged in combat. The fact that the Veteran engaged in combat is significant because it allows a combat veteran to use “satisfactory lay or other evidence” to establish that he was injured or incurred a disability while on active duty, even in cases where “there is no official record” that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (quoting 38 U.S.C. § 1154(b)). Thus, based on the Veteran’s competent and credible lay statements the in-service injury requirement has been met. The remaining question is whether the Veteran's current acquired psychiatric disability, to include adjustment disorder, depression and anxiety, is related to service. The Veteran attributed his current acquired psychiatric disability to combat stressors in service. The Veteran is competent to provide evidence of observable events and report the onset of anxiety and depressive symptoms. 38 C.F.R. § 3.159(a)(2) (lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran was not provided a VA examination and there is no medical opinion linking the Veteran’s acquired psychiatric disorder to service. However, as indicated in Reeves, 682 F.3d at 998, Congress enacted the law relating to combat, now codified at section 1154(b), because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records necessary to establish that they suffered an injury or disease while in service. In many instances, medical records do not survive combat conditions. Id. Furthermore, due to the exigencies of battle, soldiers may not immediately seek medical treatment for combat-related injuries. Id. Moreover, there is no other evidence that attributes the Veteran's current acquired psychiatric disability to any other cause. In addition, the fact that the combat stressors caused the Veteran’s in-service psychiatric injury is established by his testimony does not prevent him from also invoking the section 1154(b) rules in order to show that he incurred the psychiatric disability itself while in service. Reeves, 682 F.3d at 999. Moreover, the August 2018 psychiatric diagnosis was based on part on the Veteran’s statements with regard to his combat experience. Based on the above evidence including the lay statements, the combat rules as interpreted in Reeves, and resolving reasonable doubt in his favor, the Board finds that the Veteran's acquired psychiatric disability, to include adjustment disorder, depression and anxiety, was incurred during his combat service. 38 U.S.C. §§ 1154(b), 5107(b); 38 C.F.R. § 3.102. There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). There is no evidence in this case, however, that the Veteran was diagnosed with PTSD or that there are symptoms of PTSD that are distinguishable from MDD. Consequently, the Veteran will be compensated for all of his psychiatric symptoms and the Board need not specifically address the issue of entitlement to service connection for PTSD. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (Board erred in failing to discuss or assess the separate effects of claimant’s service-connected and non-service-connected disabilities and whether, standing alone, his service-connected disabilities warranted an award); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when effects of service-connected and non-service-connected disabilities cannot be separated, reasonable doubt requires that the signs and symptoms should be attributed to the service-connected disabilities). REASONS FOR REMAND Entitlement to service connection for obstructive sleep apnea (OSA) and sleep disturbances, to include as secondary to service-connected CAD (with intermediary obesity), is remanded. In the present case, the Veteran has not been afforded a VA examination for his claimed OSA. VA is required to provide an examination or obtain a medical opinion in a claim for service connection when: (1) the record contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of disability; (2) the record indicates that the disability or symptoms of disability may be associated with active service; and (3) the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. A claimant's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. Id. at 83. A June 2017 VA treatment note indicates that the Veteran was diagnosed with sleep disturbances. A January 2017 VA physician categorized the Veteran’s sleep apnea as 11 on the apnea hypopnea index (AHI) indicating mild sleep apnea. Also, a January 2017 VA treatment note indicates that the Veteran has experienced continuous insomnia as a result of traumatic events in service. In a 2021 legal brief, the Veteran, through his representative, raised the possibility that his OSA was due to his obesity which was caused by his service-connected CAD. The Veteran’s VA treatments records indicate that the Veteran is obese. The Board notes that obesity is not a disability for purposes of VA benefits and it cannot be service connected on a direct basis. Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). A grant is warranted (1) if the service-connected disability caused the Veteran to become obese; (2) if obesity was a substantial factor in causing a subsequent disability; and (3) if the subsequent disability would not have occurred but for obesity. See also Walsh v. Wilkie, No. 18-0495, slip op. at 4-5 (U.S. Vet. App. February 24, 2020) (precedential panel decision) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). Therefore, the evidence indicates that the Veteran has a current disability that may be associated with service and a remand is warranted to afford the Veteran an appropriate examination and medical opinion to determine the nature and etiology of his OSA and sleep disturbances. 38 U.S.C. § 5103A (d); McLendon, supra. Entitlement to a TDIU is remanded. The issue of entitlement to TDIU was raised on the Veteran’s October 2018 NOD, where the Veteran reported as an issue that VA failed to find the Veteran totally disabled. In light of the Court's holding in Rice v. Shinseki, 22 Vet. App. 446 (2009), the Board has assumed jurisdiction of the issue of entitlement to a TDIU as part and parcel of the initial rating claim on appeal. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). As the rating for the Veteran’s CAD has been increased to 60 percent for the entire appeal period, the Veteran has met the threshold requirements set forth in 38 C.F.R. § 4.16(a) for a TDIU rating on a schedular basis. The agency of original jurisdiction (AOJ) has not adjudicated this matter and the Veteran has never submitted a formal claim for a TDIU (VA Form 21-8940) and should be asked to complete and submit this form upon remand. The matters are REMANDED for the following action: 1. Request an opinion from an appropriate physician to determine the nature and etiology of the Veteran’s OSA to include any sleep disorder. The physician should first identify all sleep disorders. Then, as to any identified disorders, the physician should indicate whether it is at least as likely as not (50 percent or greater probability) that any such disorder had its onset in service or is otherwise related to service. The physician should also address whether the Veteran's service-connected CAD caused him to become obese due to, inter alia, inactivity or immobility; if so, whether the obesity was a substantial factor in causing the Veteran's claimed OSA; and whether the OSA would not have occurred but for the obesity. If an examination is deemed necessary, one should be conducted, to include via telehealth. 2. Develop and adjudicate the issue of entitlement to a TDIU, to include sending the Veteran a formal TDIU application form (VA Form 21-8940) if one has not yet been received. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, 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.