Citation Nr: 21008036 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-20 700 DATE: February 11, 2021 ORDER Entitlement to service connection for a left knee condition is denied. Entitlement to an initial 30 percent rating, but no higher, for myocardial infarction prior to March 12, 2014 is granted. Entitlement to a rating in excess of 30 percent prior to February 11, 2020, and in excess of 60 percent thereafter for myocardial infarction is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The probative evidence of record does not show that the Veteran’s left knee condition is related to his active duty service. 2. Prior to March 12, 2014, the Veteran’s heart condition was more closely represented by a workload of greater than 5 METs but not greater than 7 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope; or, evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 3. Prior to February 11, 2020, the Veteran’s heart condition did not manifest to more than one episode of congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. 4. From February 11, 2020, the Veteran’s heart condition did not manifest to chronic congestive heart failure; or workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an initial 30 percent rating, but no higher, prior to March 12, 2014 for myocardial infarction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.104, Diagnostic Code 7006. 3. The criteria for an increased rating in excess of 30 percent prior to February 11, 2020, and in excess of 60 percent thereafter for myocardial infarction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.104, Diagnostic Code 7006. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) in the United States Army from May 2006 to February 2007 and on active duty from May 2007 to June 2008. In September 2018, the Veteran was provided a hearing with the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The claims were brought before the Board in April 2019 and were remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).  When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)).  The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient.  Waters v. Shinseki, 601 F.3d 1274, 1278 (2010).  Entitlement to Service Connection: Left Knee Condition The Veteran contends that he currently suffers from a left knee condition that is related to his active duty service. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with joint osteoarthritis of the left knee.  Thus, the issue turns upon whether there is evidence of an in-service event or injury and a nexus between the claimed in-service event or injury and the present disability.  See Sheldon v. Principi 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board finds there is not. In February 2020, the Veteran was provided a VA examination. The examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationalized that the Veteran’s service treatment records were silent for complaints, evaluations, and/or treatment to the claimed left knee disability during his active duty service. The examiner further noted that medical records are silent for any treatment related to the Veteran’s left knee within two years of discharge and the evidence shows the Veteran did not begin to complain or seek treatment for his left knee until 2011. The examiner lastly found that x-ray findings of the Veteran’s left knee are compatible with degenerative changes related to the normal aging process. The Board notes that VA treatment records show complaints and treatment for the Veteran’s left knee. However, none of the records relate the Veteran’s left knee to his active duty service. Further, his records do not show notations or complaints regarding his left knee until around 2012, which is about four years after his active duty service. The Veteran’s service treatment records do not show any notations for a knee condition during his active duty service. In fact, he only reported a heart condition on a physical profile when he returned from active duty and only noted a heart condition on physical profiles for his Reserves service until 2012. Therefore, the Board finds the February 2020 VA opinion to be of significant probative value in determining the Veteran’s left knee condition is not related to his active duty service.  The Board notes that the probative value of medical opinion evidence is based on the medical experts’ personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion.  As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Here, the examiner showed knowledge of the Veteran’s background and based the opinion on the Veteran’s lay contentions, the physician’s medical knowledge, and examination of the Veteran.  Additionally, a complete and thorough rationale was provided for the opinion rendered and is consistent with the medical evidence of record.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).    The Board acknowledges the Veteran’s assertions that his left knee condition is related to his active duty service.  The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).  However, although the Veteran is competent to report his symptoms, any opinion regarding whether any knee disability is related to his military service, requires medical expertise that the Veteran has not demonstrated since knee disabilities can many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007).  Further, the Board again notes that the Veteran’s records do not show complaints of a left knee condition during active service or immediately following his service. As the Veteran has a diagnosis of arthritis, the Board has also considered presumptive service connection or service connection based on a continuity of symptomatology.  However, there is no evidence that the Veteran had a left knee disability that manifested within one year after discharge from service.  To the extent that the Veteran asserts that he experienced a left knee disability continuously since discharge from service, the Board again notes that the Veteran has provided no evidence showing treatment for a left knee condition until 2012, 4 years after his active duty service. Further, the February 2020 VA examiner found the Veteran’s left knee degenerative arthritis was more consistent with the normal aging process. In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when 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). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to Increased Rating: Myocardial Infarction The Veteran’s service-connected myocardial infarction is currently rated as 10 percent prior to March 12, 2014, 30 percent disabling from March 12, 2014 to February 11, 2020, and as 60 percent disabling thereafter under Diagnostic Code (DC) 7006 of the Schedule Ratings for Diseases of the Heart. See 38 C.F.R. § 4.104, DC 7006. Diagnostic Code 7006 provides for a 100 percent rating during and for three months following myocardial infarction documented by laboratory tests. Thereafter, a 10 percent evaluation is assigned for a workload of greater than 7 METs but not greater than 10 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent evaluation is assigned for a workload of greater than 5 METs but not greater than 7 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Id. A 60 percent evaluation is warranted when there is more than one episode of congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. Id. Lastly, a 100 percent rating contemplates documented myocardial infarction resulting in chronic congestive heart failure; or workload of 3 METs or less result in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction (LVEF) of less than 30 percent. Id. In December 2010, the Veteran was seen at the VA medical center with complaints of chest pain and reports that he went to the emergency room (ER) the Sunday before. He reported he went to the ER because he felt pain all over his torso. The Veteran reported pain located throughout his anterior chest that was sharp in quality, with movement of the chest wall that exacerbated the pain. There was no exertional exacerbation and the pain lasted a short time, more than a few seconds but less than two minutes. The Veteran was noted as having an exercise tolerance test performed at the ER and was found to have excellent exercise tolerance. He did have mild upward sloping ST depression. His stress test echocardiogram showed no motion defect and there was vascular spasm. He was discharged home and reported feeling fine since. In February 2011, the Veteran was seen at the VA medical center for a routine visit. The Veteran denied any chest pain, dyspnea or edema. On review of his symptoms, there was no chest pain, palpitations, or paroxysmal dyspnea. In May 2011, the Veteran completed a physical profile for his Reserve service. The Veteran reported not being able to move 40 pounds, run for 2 miles, or do sit ups, push-ups, swim, and bike. The Veteran reported being able to walk 2 miles, carry and fire weapons, and wear body armor for at least 12 hours a day. In March 2014, the Veteran was provided a VA examination. The Veteran was noted as needing to take continuous medication in the form of Aspirin. The Veteran did not have congestive heart failure, heart valve, or cardiac arrythmia. The Veteran did not have infectious heart conditions or pericardial adhesions. The Veteran had a hospitalization for treatment of heart condition. On physical examination, the Veteran’s heart rhythm was regular, the point maximal impact was 5th intercostal space, and heart sounds were normal. The Veteran had normal peripheral edema and pulses. The Veteran did not have cardiac atrophy or dilation. The Veteran’s workload was 5-7 METs that results in dyspnea and fatigue. The examiner noted this level is consistent with activities such as walking one flight of stairs, golfing without a cart, mowing the lawn, and heavy yard work. The examiner further noted the Veteran’s symptoms caused mild functional impact on the Veteran’s ability to perform chores, exercises, and sports. VA treatment records show the Veteran had left ventricular dysfunction with an ejection fraction (LVEF) of 65 to 70 percent in November 2014. A stress test was also conducted in January 2015. The Veteran’s METs were 10.4, and the physician noted it was negative for exercise induced ECG suggestive of ischemia. The Veteran had another stress test in November 2016. The Veteran complained of chest pain and his workload METs were 13.4. In February 2019, the Veteran was seen at the VA medical center. The Veteran reported sporadic episodes of chest pain that were stabling-like, retrosternal, and sometimes associated with shortness of breath. His last episode had occurred three days prior, and he reported they occur 2-3 times a week lasting from 20 seconds to a minute. He did not have any visits to the ER due to his symptoms. The Veteran was evaluated and found stable and free of symptoms. In February 2020, the Veteran received another VA examination. The Veteran reported daily fatigue, daily episodes of dizziness and angina, and dyspnea when walking one block or climbing one flight of stairs. He reported taking medications daily, which the examiner noted as continuous. The Veteran did not have congestive heart failure or arrhythmia. He did not have heart valve or infectious heart conditions. On physical examination, the Veteran’s heart rate was 62, his rhythm was regular, and heart sounds were normal. The point of maximal impact was 4th intercostal space. The auscultation of the lungs was clear, and his peripheral pulses were normal. The Veteran did not have peripheral edema. The Veteran did not have evidence of cardiac hypertrophy. He did have cardiac dilatation that was documented on echocardiogram. The Veteran’s LVEF was 60 percent, and wall motion was abnormal. His wall thickness was normal. The Veteran’s workload was 3 to 5 METs that results in dyspnea, fatigue, angina, and dizziness. The examiner noted this METs level is consistent with activities such as light yard work, mowing the lawn, and brisk walking. The Veteran’s condition was noted as causing moderate impact on chores, shopping, recreation, traveling, bathing, dressing, toileting, grooming, and driving. It also prevented him performing exercise and participating in sports. The examiner also noted the Veteran complained of episodes of dizziness, angina, and dyspnea with lifting and carrying heavy objects. After review of the evidence of record, the Board finds that an initial rating of 30 percent, but no higher, is warranted prior to March 12, 2014. Although the Veteran did not have documented METs of greater than 5 but less than 7, or cardiac hypertrophy or dilatation, the Board finds the overall evidence more closely represents the Veteran’s symptoms were mild to moderate in severity. During this period, the Veteran had an account of severe chest pain that warranted a visit to the emergency room, as well as reported shortness of breath on occasion. He further noted on his physical profiles for his Reserve service that he was unable to swim, run, do push-ups, sit ups, or carry heavy items. Thus, the Board finds his symptoms were more mild to moderate in nature and a rating of 30 percent is warranted. However, the Board finds that a rating in excess of 30 percent is not warranted for any time prior to February 11, 2020. Prior to February 11, 2020, the Veteran’s condition did not show a workload of METs of 5 or less, or an LVEF less than 60 percent. In fact, multiple stress tests show the Veteran having workload METs of greater than 7, and LVEF of 60 percent or higher. The Veteran also did not have any cardiac hypertrophy or dilatation or congestive heart failure. The Board also notes that during his examinations and routine visits, the Veteran was often found to be free of chest pain, palpitations, and dyspnea, as well as only reported episodes that were sporadic and did not last more than a minute. Therefore, the Board finds that a rating in excess of 30 percent prior to February 11, 2020 is not warranted. Lastly, the Board finds that a rating in excess of 60 percent from February 11, 2020 is not warranted. At no time during the pendency of the appeal has the Veteran had congestive heart failure, a workload of 3 METs or less, or LVEF less than 30 percent. The Veteran was further not found to have arrythmia. While the Veteran’s condition was noted as having moderate to preventative impact on his ability to perform daily activities, the Veteran’s symptoms were not found to cause severe impact or prevent him from performing the majority of his daily activities. Therefore, the Board finds that a rating of 100 percent is not warranted for any time during the pendency of the appeal. See 38 C.F.R. § 4.104, DC 7006. The Board also acknowledges the Veteran’s assertions that he is entitled to a higher rating because his symptoms are worse, to include his statements during his September 2018 Board hearing. The Board recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the Board has considered the Veteran’s statements and finds them credible and consistent with the ratings assigned. In light of the foregoing, the Board concludes that an initial rating of 30 percent for myocardial infarction prior to March 12, 2014 is warranted. However, a rating in excess of 30 percent prior to February 11, 2020 and in excess of 60 percent thereafter is not. The benefit of the doubt doctrine has been considered in this decision. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). REASONS FOR REMAND Although the Board sincerely regrets further delay, another remand is required to afford the Veteran every possible consideration. Entitlement to TDIU The Veteran contends that his service-connected myocardial infarction prevents him from being employable. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned 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, or if there are two or more disabilities, there shall be at least one 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). Here, the Veteran’s compensable service-connected heart disability is rated as 30 percent prior to February 11, 2020 and as 60 percent thereafter. The Veteran is also service-connected for hypertension with a non-compensable rating. Therefore, the Veteran does not meet the requirements of 38 C.F.R. § 4.16 (a). The Board notes that an extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). Here, the Veteran reported working as a baggage handler for the airport. He reported that due to his condition, he was unable to lift heavy bags anymore and when he requested accomodation, the Veteran was terminated. The Board notes that the Veteran’s occupational history has primarily consisted of baggage handling. The Veteran has further consistently reported issues with carrying heavy items, being able to walk more than a mile or two, and dyspnea or shortness of breath with any type of exertion. Thus, the Board finds that a remand is required in order to refer the claim to the Director of VA’s Compensation and Pension Service for consideration of entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Request the Veteran submit income information regarding his last employment position up until his last date of employment. 2. Then, refer the claim to the Director of VA’s Compensation and Pension Service for consideration of entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b). The Director should consider all available medical evidence of record, to include all VA examinations and medical records related to his service-connected heart condition. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron, 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.