Citation Nr: 21007568 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-25 209 DATE: February 10, 2021 ORDER Entitlement to service connection for a heart condition is granted. Throughout the appeal, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The evidence is in relative equipoise with respect to whether the Veteran has a current heart condition, diagnosed as cardiomyopathy and supraventricular arrhythmia, that is related to service. 2. The Veteran’s service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart condition have been met. 38 U.S.C. § §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Throughout the appeal, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Coast Guard from September 1988 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2017. This case was previously remanded by the Board in a March 2018 decision for further development. 1. Entitlement to service connection for a heart condition Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. In the March 2018 Board decision, the Board noted the Veteran’s diagnosis of atrial fibrillation and nonischemic cardiomyopathy. See July 2008 Medical Treatment Record at 7. The Veteran also competently and credibly testified that he experienced chest pains while in service. The Board found this lay evidence especially relevant, as there has been a formal finding of unavailability of his service treatment records. Additionally, the Veteran has asserted that his heart condition could be secondary to his service-connected psychiatric disability. See September 2017 Hearing Transcript at 22. The Board remanded the matter for a VA examination and etiology opinions in relation to his heart condition claim. See March 2018 BVA Decision. The Veteran was provided a VA examination for his heart condition in September 2019. The VA examiner confirmed a diagnosis of supraventricular arrhythmia, cardiomyopathy, with an implanted cardiac pacemaker and an implanted automatic implantable cardioverter defibrillator (AICD). The Veteran’s reported date of onset of his heart disability was in 1990, when he complained of chest pains with anxiety while in service, and since that time the condition has progressed. The Veteran reported current symptoms of shortness of breath, decreased exercise tolerance, and takes continuous medication for his heart. See September 2019 C&P Exam. The VA examiner opined that the heart disorder, along with Veteran’s musculoskeletal conditions, were at least as likely as not incurred in or caused by the Veteran’s active duty service. The examiner referenced the lack of service treatment records available and considered Veteran’s credible lay statements regarding chest pains while in service and recurring treatment since. See September 2019 C&P Medical Opinion. As to secondary service connection, the VA examiner opined that Veteran’s heart condition was less likely than not due to service-connected conditions as there is no clinical evidence to support depression causing arrhythmia, or non-ischemic cardiomyopathy or that depression aggravates these conditions. See Id. In an addendum medical opinion, the VA examiner explained that considering Veteran’s lay statements about his trouble with stress, constant migraine headaches and heart pain while in service, his description of his work and duration of work which are competent and credible, the Veteran’s several conditions including his heart disorders have had continuity and chronicity since he left service. See July 2020 VA Medical Opinion. The Veteran also submitted a statement in support of his service connection claim regarding his heart condition and how it has rendered him unemployable. See September 2020 Correspondence. The Veteran mentions in his letter that physically his heart has deteriorated to the point that he needs the use of a pacemaker and defibrillator, he feels weak, dizzy, lightheaded, lethargic, and experiences shortness of breath and chest pain all the time; his heart has become weak and does not pump the volume of blood that it normally would. Id. The Veteran stated in dealing with his arrhythmia and atrial fibrillation, his private physician told him he “has the heart of a seventy year old man.” Id. The Board finds that the VA examiner’s rationale was probative and sufficient to establish a nexus between the Veteran’s heart condition and his military service, in the absence of service treatment records. Given the Veteran’s lay statements and testimony regarding his heart symptoms that ultimately led to his cardiomyopathy and supraventricular arrhythmia, The Board finds that the Veteran’s heart condition had its onset in service and has been recurrent since that time. Thus, with the resolution of all reasonable doubt in the Veteran’s favor, the Board finds that service connection for a heart condition is warranted. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran filed this claim on December 10, 2009 by filing VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In his December 2009 VA Form 21-8940, the Veteran indicated that he has been undergoing going treatment for a heart condition and had a defibrillator installed in July 2007. July 2007 was the date listed where Veteran became too disabled to work and had not worked since then; prior to July 2007, Veteran worked as a computer analyst for the last twelve years. Veteran indicated he had two years of college education and he completed computer programming training. In another VA Form 21-8940 filed in August 2010, Veteran indicated his musculoskeletal condition, psychiatric issues and heart problems all prevented him from securing or following substantially gainful occupation since July 5, 2007. He also stated his doctor had not allowed him to return back to work, and he had a pacemaker installed and its electrical field did not allow him to be around industrial routers, serves, switches and main frame computers. See November 2009 Medical Treatment Record; see also July 2008 Medical Treatment Record. In the January 2011 VA Examination, the VA examiner held that Veteran has been unable to work due to heart and other health problems; specifically the examination indicated the Veteran’s non-ischemic cardiomyopathy, heart block, ICD placement makes him unable to go back to his previous job or any job close to industrial router switches and strong electromagnetic fields. In the September 2019 VA examination afforded to the Veteran, the musculoskeletal conditions and his heart condition also were found to impact his ability to work. Specifically, his heart condition causes easy fatigability, and Veteran is recommended to avoid strenuous activity, Veteran’s knee disability renders him unable to squat or bend frequently, his back disability renders him unable to lift weights, his foot disability creates difficulty with prolonged standing, walking and running, and his neck disability has impaired his ability to turn his neck frequently. The Veteran submitted another VA Form 21-8940 in September 2020, with which he attached a letter detailing how his musculoskeletal, heart and psychiatric disabilities have affected him and his ability to work, rendering him unemployable. He specifies that he still has not been able to get or hold a job, it becomes hard for him to breathe and he is out of breath frequently and easily, referring to the lack of stamina and poor blood circulation as reasons why he is unable to work. See September 2020 Correspondence. Additionally, the Veteran submitted further information revealing he was on short term disability from July 2007 through January 2008 from his last job after his doctor and employer would not allow him to return to work due to his medical conditions; he has not worked since that time and has not received any short term or long term financial benefits from an employer. See October 2020 VA Form 21-4192 Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran’s service connected disabilities include the depression, which is rated at 70 percent, foot disability, rated at 30 percent, neck disability rated at 20 percent, back disability rated at 20 percent, tinnitus rated as 10 percent, a left knee disability which is rated at 10 percent and a right knee disability rated at 10 percent disabling. The Veteran’s combined disability rating is 90 percent, effective September 13, 2010, and his disabilities meet the schedular criteria set forth in 38 C.F.R. § 4.16(a). Given the evidence regarding the severity of the Veteran’s service-connected disabilities, specifically his service-connected heart condition, the Veteran’s functional limitations due to these disabilities, and in light of his history, education, skill, work experience and training, and with resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In light of the foregoing, the Board finds that entitlement to a TDIU is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.