Citation Nr: 21007434 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-19 624 DATE: February 9, 2021 ORDER Entitlement to an initial rating for coronary artery disease status post coronary artery bypass graft (CAD) in excess of 10 percent prior to March 21, 2013 and in excess of 30 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is denied. FINDINGS OF FACT 1. Prior to March 21, 2013, the Veteran’s heart condition showed a workload of 3 METs, no cardiac hypertrophy or dilatation, and left ventricular ejection fraction of 55 percent. 2. For the period from March 21, 2013, the Veteran’s heart condition showed cardiac hypertrophy confirmed by echocardiogram, left ventricular ejection fraction of 70 percent, and a METs level estimated to be 1-3. 3. The Veteran’s service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. 4. Referral for extra-schedular consideration of TDIU is not warranted. CONCLUSIONS OF LAW 1. Prior to March 21, 2013, the criteria for a disability rating in excess of 10 percent for coronary artery disease status post coronary artery bypass graft have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. 2. For the period from March 21, 2013, the criteria for a disability rating in excess of 30 percent for coronary artery disease status post coronary artery bypass graft have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7005. 3. The criteria for TDIU are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 4. The criteria for referral for consideration of a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341(a), 4.3, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the videoconference hearing is of record. The claims on appeal were remanded by the Board in February 2018 and July 2019. Initial Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to an initial rating for coronary artery disease status post coronary artery bypass graft (CAD) in excess of 10 percent prior to March 21, 2013 and in excess of 30 percent thereafter is denied. The Veteran's service-connected CAD is assigned staged ratings under DC 7017. Therefore, the Board will consider whether an initial rating in excess of 10 percent is warranted from April 20, 2010 to March 20, 2013, and whether a rating in excess of 30 percent is warranted from March 21, 2013. Under DC 7017, a 10 percent rating is warranted for a workload greater than 7 METs but less than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope or where continuous medication is required. A 30 percent rating is warranted where a workload of greater than 5 METs but less than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope or there is evidence of cardiac hypertrophy or dilation. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs but less than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted where there is chronic congestive heart failure; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7017. Relevant Evidence The Veteran underwent a VA Ischemic Heart Disease Examination in July 2011. The Veteran reported that in 2000 he was having chest pain and was taken to a hospital where he was diagnosed with a myocardial infarction. The examiner confirmed a diagnosis of ischemic heart disease (IHD) and noted that the IHD diagnosis is inclusive of myocardial infarction. The Veteran takes continuous medication for treatment. He had coronary bypass surgery in December 2004. METs testing was not completed because it is not required as part of the Veteran’s treatment plan. The Veteran reported chest pain mostly with exertion, shortness of breath with exertion, dizziness/lightheadedness, occasional palpitations, and no syncope. He denied peripheral edema (3 METs). This METs level was found to be consistent with his activity level – light housekeeping and walking around the yard regularly. His disability does not affect employment. No inflammation, no keloid formation. Diagnostic testing revealed no evidence of cardiac hypertrophy, and no evidence of cardiac dilation. The left ventricular ejection fraction is 55 percent. The examiner stated that the left ventricle ejection fraction is an objective and accurate indicator of the Veteran’s current cardiac functional status compared to a subjective METs, due to comorbidities. The Veteran underwent a VA Heart Conditions Disability Benefits Questionnaire (DBQ) in April 2016. The examiner confirmed a diagnosis of coronary artery disease, which qualifies within the generally accepted medical definition of IHD. He reported his last cardiac intervention was 12/20/2012 when he had one stent placed at a hospital. The Veteran’s condition requires continuous medication. He had percutaneous coronary intervention (PCI) (angioplasty), coronary artery bypass surgery (2004). He was hospitalized in December 1991 and January 2005, both for angina. He has scars located in the mid anterior chest that is .5cm x .3 cm. A December 2012 coronary artery angiogram showed abnormal results (triple vessel coronary disease: history of 2 vessel bypass grafting with 2 of 2 patent grafts. History of right coronary artery and obtuse marginal stent intervention with patent stents. New high-grade disease in the distal left main stem successful PCI and one stent placed. A March 21, 2013 echocardiogram showed cardiac hypertrophy. There is no evidence of cardiac dilation. A March 21, 2013 echocardiogram showed left ventricular ejection fraction (LVEF) of approximately 70 percent, normal wall motion, abnormal wall thickness (basal septal hypertrophy). A November 2014 nuclear chemical stress test shows mildly abnormal stress nuclear imaging study with pharmacologic stress. It was reported that an exercise stress test was not performed because it was not required as part of the Veteran’s current treatment plan and this test was not without significant risk. An interview-based METs test was done on April 12, 2016. The symptoms during activity were dyspnea, fatigue, dizziness, and palpitations. (1-3 METs) level has been found to be consistent with activities such as eating, dressing, taking a shower, slow walking (2mph) for 1-2 blocks. This limitation in METs level is due to multiple medical conditions including the heart conditions. It was not possible to accurately estimate the percent of METs limitation attributable to each medical condition. The Veteran has co-morbidities affecting his METs level: hyperlipidemia, rectal cancer, hypertension, hypothyroidism, history of tobaccoism. The Veteran’s heart condition impacts his ability to do physical work, but he can do sedentary work. The examiner stated the Veteran’s ejection fraction is the best indicator of his current cardiac functional status as he has co-morbidities that affect his METs level. Given the aforementioned, an addendum opinion was obtained in April 2016. The examiner stated: Regarding the impact of the Veteran’s other co-morbidities on the Veteran’s METS level of 1 to 3 METS, I am unable to accurately estimate the METS limitation attributable to each medical condition without resorting to speculation. I can say with reasonable assuredness that the majority impact on his METs level of 1 to 3 METs is due to his history of tobaccoism, and hypothyroidism, and deconditioning as his subjective symptoms of dyspnea, fatigue, dizziness, and palpitations are most consistent with these conditions, but beyond that, I would have to resort to mere speculation as it is the combination of all of his co-morbidities together that contribute to his METs level of 1 to 3 METs. The left ventricular ejection fraction was reported as 70 percent. Regarding the effect of the Veteran’s ejection fraction on his current cardiac functional status, the Veteran’s normal ejection fraction as noted on his echocardiogram is the best indicator of his current cardiac functional status as it is an objective cardiac test and is a direct measurement of his cardiac function (in contrast to the subjective answers given by the veteran to the interview METs testing questions). This is further confirmed with the Veteran’s last two cardiologist office visits: “1) 11-17-2015 cardiology note states rarely has angina with hard work; he does note fatigue; wife reports he appears to be doing well; ROS reveals cardiovascular: negative for chest pain, DOE, Orthopnea, PND, irregular heartbeat, and palpitations; assessment: CAD: Overall stable, continue current regimen and follow up in 8 months. 2) 4-16-2015 Cardiology note states that “in follow up today, he reports he has been feeling well; he occasionally has angina symptoms at high workloads. He does not report any change in the pattern recommendations: Veteran appears stable; follow up in 6-8 months.” His last 2 cardiologist visits have shown cardiac stability and only having cardiac symptoms at high workloads which indicates a much higher METs level for his heart capability than the METs level of 1 to 3 METs on his interview METs questionnaire and this is consistent with his objective testing of a normal ejection fraction on his echocardiogram which clearly indicates a better and more accurate assessment for his current cardiac functional status. Another VA addendum opinion was obtained in September 2019. The examiner stated: A METs exercise test was not administered on the Veteran due to medical reasons as follows: the Veteran has the following cardiac risk factors: age, hypertension positive, hyperlipidemia positive, coronary artery disease positive, coronary artery bypass surgery positive, history of myocardial infarction and percutaneous transluminal angioplasty positive with multiple stents over the years, history of tobaccoism, and also significant other co-morbidity conditions including history of bowel resection for colon cancer with ileostomy and ileostomy reversal surgeries, colostomy, hypothyroidism, rectal cancer, right hip surgery, chronic kidney disease, two right shoulder surgeries, history of anemia, and sleep apnea; the Veteran needed his heart studied in 11/2014 and his cardiologist chose chemical (rather than exercise) stress testing to evaluate and I agree with that decision; for all of these reasons, I do not feel comfortable with exercise stress testing of this veteran as it is not without significant risk. My estimation of the level of activity expressed in METs for this Veteran considering solely his heart without the impact of his abovementioned co-morbidities would be 5-7 METs. The Veteran stated 1-3 METs which includes all his co-morbidities. In support of this also is his cardiologist note of 11-17-2015 which states ‘has shortness of breath, fatigue, and rarely angina with hard work,’ supporting a 5-7 METs workload for his heart. However, the Veteran had an echocardiogram on 1-7-2019 (Reason for study: Hypertensive urgency) which showed a left ventricular ejection fraction of 56% which is a direct measurement of his cardiac functional status and, in my opinion, is the best indicator of his current cardiac functional status. Legal Analysis and Conclusion The Board finds that prior to March 21, 2013, the criteria for a rating in excess of 10 percent were not shown. The July 2011 examination report showed no evidence of cardiac hypertrophy or dilatation. While the evidence showed a workload of 3 METs, the July 2011 VA examiner specifically stated that the left ventricle ejection fraction is an objective and accurate indicator of the Veteran’s current cardiac functional status compared to a subjective METs, due to comorbidities. As such, this case is distinguishable from Mittleider because the examiner clearly explained that the METs level does not describe solely the cardiac disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Here, the left ventricular ejection fraction was 55 percent. Thus, a 30 percent rating or higher is not warranted for this period. For the period beginning on March 21, 2013, the criteria for a 60 percent rating have not been shown. The April 2016 VA Heart Conditions DBQ notes cardiac hypertrophy confirmed by echocardiogram. METs level was estimated to be 1-3 but attributable to more than one medical condition: heart condition, hyperlipidemia, rectal cancer, hypertension, hypothyroidism, hx of tobaccoism. As such, this case is distinguishable from Mittleider because the examiner clearly explained that the METs level does not describe solely the cardiac disability. See Mittleider, 11 Vet. App. at 181. The examiner noted that the Veteran’s normal ejection fraction as noted on his echocardiogram is the best indicator of his current cardiac functional status as it is an objective cardiac test and is a direct measurement of his cardiac function, which is in contrast to the subjective answers given by the veteran to the interview METs testing questions. Left ventricular ejection fraction was 70 percent. As the record did not show evidence of more than one episode of acute congestive heart failure in the past year or left ventricular dysfunction with an ejection fraction of 30 to 50 percent, a 60 percent rating is not warranted for this period. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability is denied. VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (b). Here, the Veteran is service-connected for CAD at 10 percent disabling from April 20, 2010, and at 30 percent disabling from March 21, 2013, and for surgical scarring at 10 percent disabling from April 20, 2010. Therefore, he does not meet the schedular requirements for TDIU. 38 C.F.R. § 4.16 (a). Moreover, referral to the Director of the VA Compensation and Pension Service for extra-schedular consideration of a TDIU is not warranted because the Veteran’s heart disability has not been shown to be of sufficient severity to render him unemployable. 38 C.F.R. § 4.16 (b). The Veteran has asserted that he cannot work due to his service-connected disabilities. See October 2020 Appellate Brief. However, in connection with the April 2016 VA Heart Conditions DBQ, the April 2016 VA examiner specifically stated that while the Veteran’s heart condition impacts his ability to do physical work, he is still able to do sedentary work. In addition, at the October 2017 Board Hearing, the Veteran himself stated that he was doing, and was able to do (albeit was limited to doing) sedentary desk work despite his heart condition. He had only decided to leave his place of employment at that time and switch to another job because of his broken hip. See October 2017 Board Hearing, p. 7-8. Therefore, there is no evidence that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected heart condition. Moreover, the Board notes that the Veteran has not completed and returned the VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, that was sent to him. As the Veteran has not submitted this information, there is no further proof that the Veteran left employment due to a service-connected disability and there is no proof that he is incapable of sustaining or returning to substantially gainful employment. (Continued on the next page)   Based on the foregoing, the preponderance of the evidence is against awarding the Veteran entitlement to TDIU due to the service-connected heart disability is denied. Given such, the benefit-of-the-doubt doctrine is not for application. Accordingly, the claim is denied. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.