Citation Nr: 21010232 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-32 067A DATE: February 24, 2021 ORDER 1. Entitlement to an increased initial rating for coronary artery disease (CAD), rated as 100 percent disabling prior to November 1, 2012 and 30 percent disabling thereafter, is denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s CAD is not manifested by a workload of 5 METs or less, left ventricular dysfunction with an ejection fraction of 50 percent or less, or chronic congestive heart failure. 2. The weight of the evidence is against finding service-connected disabilities prevented the Veteran from performing the physical and mental acts required for employment. CONCLUSIONS OF LAW 1. The criteria for an increased initial rating for CAD, rated as 100 percent disabling prior to November 1, 2012 and 30 percent disabling thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code (DC) 7005. 2. The criteria for TDIU have not been met for any period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded the matters for further development, to include obtaining outstanding Social Security Administration (SSA) disability records and referral of TDIU for consideration on an extraschedular basis. As the requested development has been completed, the matters are properly returned to the Board for further adjudication. 1. Entitlement to an increased initial rating for CAD, rated as 100 percent disabling prior to November 1, 2012 and 30 percent disabling thereafter. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time, from December 17, 2010 in this case. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Preliminarily, the Board notes that from December 17, 2010 to November 1, 2012, the Veteran’s CAD was assigned a disability rating of 100 percent. In a May 2018 remand, the Board clarified that the Veteran’s rating of 100 percent was based on the Veteran having suffered a myocardial infarction in December 2010 and subsequent CAD bypass graft surgery in February 2011. See May 2018 BVA Remand, p. 2; see also 38 C.F.R. § 4.104, DCs 7006, 7017. DC 7006 assigns a disability rating of 100 percent during and for three months following a myocardial infarction. DC 7017 assigns a disability rating of 100 percent for three months following hospital admission for coronary bypass surgery. Both DCs provide that after such periods of time, the disability is to be rated based on various other factors that pertain to the condition. Ratings of 100 percent assigned under DCs 7006 and 7017 based on myocardial infarction or coronary bypass surgery terminate by operation of law and the disability is then evaluated based on other factors. See Rossiello v. Principi, 3 Vet. App. 430 (1992) (where the Court found that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable DC involved contained a temporal element for the 100 percent rating). However, the Veteran continued to receive a 100 percent rating under these DCs for nearly two years, which would result in a greater benefit than the regulation expressly authorizes. In the May 2018 remand, the Board decided to not disturb this favorable finding. See May 2018 BVA Remand, p. 3. Accordingly, the Board will address the Veteran’s claim for an increased initial rating beginning November 1, 2012, the date from which the Veteran was assigned a disability rating of 30 percent, based on the criteria found in DCs 7006 and 7017. The Veteran’s CAD is currently rated as 30 percent disabling under DCs 7006 and 7017, as noted above. Both DCs require the same criteria for the same ratings. The next highest rating, a 60 percent rating, is assigned when there is more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where LVEF is less than 30 percent. 38 C.F.R. § 4.104. After a review of the record, the Board finds that a higher rating is not warranted. In December 2010, the Veteran underwent an exercise stress test with a stress echocardiogram. The provider noted that the Veteran achieved a workload of 7 METs and that the Veteran exhibited excellent left ventricular function. See SSA Records, p. 44. In January 2011, the Veteran underwent an echocardiogram, which showed an LVEF of 55 to 65 percent. See May 2011 VA Examination, p. 2. In February 2011, a VA provider indicated that the Veteran achieved 4 METs. See Dec. 2013 CAPRI, p. 112. Within the same record, the provider noted that the Veteran achieved 4 to 6 METs and that the day prior, the Veteran was grocery shopping and had to use sublingual nitroglycerine for chest tightness. Id. at 110. In a February 2011 Ischemic Heart Disease (IHD) Disability Benefits Questionnaire (DBQ), the provider noted that the Veteran’s LVEF was 62 percent. The provider also noted that the Veteran did not have congestive heart failure. No METs values were provided. In March 2011, a post-operative treatment note indicated that the Veteran had “done well since surgery,” had no congestive symptoms, and was walking a quarter of a mile daily without any difficulty. See Medical Treatment Record – Government Facility, p. 13. In April 2011, the Veteran underwent another exercise stress test, in which he achieved a METs level of 9.70. Id. at 19. In June 2011, the Veteran underwent another echocardiogram, indicating LVEF of 55 to 65 percent. In March 2014, the Veteran underwent a nuclear stress test. The Veteran’s peak workload was noted as 11.3 METs. See Feb. 2019 CAPRI, p. 290. In July 2015, the Veteran’s workload was noted at 7 to 9 METs and he denied congestive heart failure. Id. at 113. In July 2017, the Veteran underwent another nuclear stress test in which he exhibited a workload of 10.10 METs. See Aug. 2018 CAPRI, p. 389. His LVEF was noted as 52 percent. Id. at 317. In March 2018, the Veteran responded “no” when asked if he had significant congestive heart failure. Id. at 364. In April 2018, the Veteran’s exhibited a workload of 7 to 9 METs and the provider noted that he did not suffer from congestive heart failure. Id. at pp. 316-317. In an April 2019 VA heart conditions examination, the Veteran underwent an interview-based METs test. The examiner found the Veteran’s estimated workload to be 7 to 10 METs. Further, the examiner stated that the Veteran’s METs score was not solely due to cardiac function and that his LVEF testing demonstrated a more accurate finding regarding solely his cardiac manifestations. In the Veteran’s October 2012 Notice of Disagreement (NOD), he contended that his disability rating for CAD should not be lowered to 30 percent. However, his contentions in the NOD spoke almost entirely to how his heart condition has affected his ability to work. There are no contentions in the NOD that speak to the specific rating criteria outlined in DCs 7006 and 7017, as outlined above. In August 2014, the Veteran submitted another NOD in which he disagreed with the assignment of a 30 percent disability rating for his CAD. However, similarly to the October 2012 NOD, the Veteran made contentions regarding his employability as it relates to CAD, any did not provide any evidence that supported a higher rating under the rating criteria. The only evidence of record indicating that the Veteran satisfied any criteria for a rating of higher than 30 percent for CAD was the February 2011 treatment record noting that he demonstrated a workload of 4 to 6 METs. However, in February 2011, as previously noted, the Veteran was already assigned a rating of 100 percent disabling for CAD. All remaining medical evidence of record indicates that the Veteran demonstrated a workload of higher than 5 METs, had an LVEF of higher than 50 percent, and showed no signs of congestive heart failure during the appeal period. Accordingly, the Board finds that an initial rating of higher than 30 percent for CAD is not warranted. 2. Entitlement to a TDIU. The Veteran contends that he is entitled to a TDIU due to his service-connected heart condition. See October 2012 NOD; August 2014 NOD. After reviewing the evidence of record, the Board finds that a TDIU is not warranted. A total disability rating 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). A TDIU may be assigned when the schedular rating for service-connected disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, it is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis in accordance with 38 C.F.R. § 3.321, when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Veteran is service-connected for CAD, status post myocardial infarction and coronary artery bypass graft (rated as 100 percent disabling from December 17, 2010 to November 1, 2012 and 30 percent disabling thereafter); post-traumatic stress disorder (rated as 30 percent disabling from March 13, 2013); and residuals of cardiac surgical scars (assigned a noncompensable rating from February 14, 2011). The Veteran had a combined rating of 100 percent from February 17, 2010 to November 1, 2012; 30 percent from November 1, 2012 to March 13, 2013; and 50 percent thereafter. Accordingly, the Veteran only met the schedular criteria for a TDIU from February 17, 2010 to November 1, 2012. 38 C.F.R. §§ 3.340, 3.341, 4.16. Where the percentage requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation Service (Director). Id. Where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant’s case is eligible for consideration under 38 C.F.R. § 4.16(b) by referral to the Director. Id. In this regard, the case was referred to the Director who denied entitlement to an extraschedular TDIU in October 2020. Although the Board must refer the case to the Director to obtain a decision before awarding extraschedular TDIU benefits, the Board is not bound by the Director’s determination. Anderson v. Shinseki, 22 Vet. App. 423 (2009). A finding of total disability is appropriate, “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. “Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran was granted Social Security Administration (SSA) disability benefits in December 2010 with a primary diagnosis of ischemic heart disease and a secondary diagnosis of osteoarthritis. See SSA Records, p. 2. In a December 2010 SSA questionnaire, the Veteran stated that he was unable to work, pursuant to medical orders, and that if he performed any type of activity for more than ten minutes, his chest would begin to hurt. Id. at 5. Regarding daily activities, he stated that he would take his grandchild to school, then would try to go for a walk but then his chest would begin to hurt. Id. at 6. He stated that he could no longer work, play a round of golf, fish, fix things around the house, or play with his grandkids for a long period of time. Id. Regarding his abilities, he stated that he could only lift five to ten pounds, that standing for long periods of time was tiring, and that walking, talking, climbing stairs, and completing tasks tired him and caused chest pain. Id. at 10. He noted that within the past 15 years, he was employed for 40 hours per week as a self-employed window tinter. Id. at 19. He maintained this business from January 1994 to December 2010. Id. A June 2011 treatment noted indicated that the Veteran was physically active, was in cardiac rehabilitation, and was taking all medications regularly. See Medical Treatment Record – Government Facility, p. 3. The provider noted that the Veteran suffered chest discomfort that was aggravated by touch. Id. The provider recommended that the Veteran continue to exercise and completion of cardiac rehabilitation training. Id In the Veteran’s October 2012 NOD, he stated that he had not been able to return to work and was forced to close his window-tinting business after his heart attack in December 2010. He stated that he was unable to work and provide for himself after his heart issues. In the August 2014 NOD, the Veteran stated that due to his heart condition and bypass surgery, he was unable to perform necessary job functions and was unable to earn income from his normal occupation. He further stated that he was no longer able to walk long distances or for extended periods and that generalized pain in his chest cavity caused him to be unable to fully perform in his profession. He also stated that he suffers from recurring chest pain episodes that require medical attention. In the April 2019 VA heart conditions examination, the examiner answered “yes” when asked whether the Veteran’s heart condition impacts his ability to work. The examiner further explained that the Veteran presently has some physical limitations to more than moderate physical activities, however, these limitations are mainly related to his recovery from neck cancer and its therapeutic radiation management, not to his heart. During the examination, the Veteran also reported that he plays golf at least once a week and experiences generalized tiredness near the end of the fifteenth hole but can usually finish the tour without any consequences. He further stated he plays with his young grandson during the week and keeps physically active with him. He reported that he closed his window tinting business in 2013 and has been working part-time for a friend in the same line of work. The Board finds that the criteria for a TDIU have not been met, as the Veteran’s service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. The Veteran’s statements in both the October 2011 and August 2014 NODs do show that he experienced several symptoms of his heart condition. However, the Veteran contended that he was unable to continue his previous job in the window tinting business, not that he was unable to work entirely. The Board also notes that in June 2011, the Veteran’s provider noted that he was physically active, was in cardiac rehabilitation, and was encouraged to continue exercise. The Board also finds the Veteran’s April 2019 VA examination to be particularly probative regarding his employability. The Veteran reported that he is able to play an entire round of golf, stay physically active with his young grandson, and works part-time at a friend’s window tinting business. The examiner further found that the Veteran had physical limitations “to more than moderate physical activities,” which are mainly related to his recovery from neck cancer. Thus, the evidence shows that the Veteran is capable of physical activity and would only be limited from taking part in physical activities of a more than moderate intensity. Taking into account both the examiner’s opinion regarding employability and the Veteran’s own reports of his usual activities, the Board finds that the Veteran’s service-connected disabilities have not precluded him from securing or following a substantially gainful occupation for any period on appeal. Accordingly, the claim for a TDIU must be denied. D. C. JOHNSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.