Citation Nr: 21015026 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 11-33 701 DATE: March 16, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to February 2, 2017 and 60 percent thereafter for ischemic heart disease (CAD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to February 2, 2017, the Veteran’s coronary artery disease (CAD) was not shown to result in a workload of greater than 5 METs, but not greater than 7 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. An ejection fraction of 50 percent or less was also not shown prior to February 2017. 2. At no time has the Veteran’s CAD is not shown to have resulted in chronic congestive heart failure; a workload of 3 METS or less; or left ventricle ejection fraction of 30 percent or less. 3. The Veteran’s service-connected disabilities have not been shown to have precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to February 2, 2017, the criteria for a rating in excess of 10 percent for CAD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Codes 7017-7005. 2. From February 2, 2017, the criteria for a rating in excess of 60 percent for CAD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7017. 3. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from February 1966 to February 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Of note, the Veteran was scheduled for a June 15, 2011 VA RO hearing. In a report of general information dated in May 2011, the Veteran indicated that he wished to withdraw his RO hearing request and his scheduled hearing was canceled. Subsequently, in August 2016, the Veteran testified before the Board at a videoconference hearing. The transcript is associated with the file. This claim was previously before the Board in December 2016 and most recently September 2019, at which time it was remanded for further development to include a Supplemental Statement of the Case (SSOC) with review of additional records added after the April 2017 rating decision and the Veteran’s TDIU claim. This claim has now returned to the Board for further appellate action. Increased Rating 1. Coronary Artery Disease The Veteran filed a service connection claim for ischemic heart disease (CAD) in June 2010. A November 2010 rating decision granted service connection and assigned an initial rating of 10 percent effective March 5, 2008, the date which the evidence showed a history of treatment for heart disease including 1992 and 2003 coronary artery bypass graft surgeries under Diagnostic Codes 7017-7005. In a letter dated in November 2003 and received by VA in November 2010, the Veteran requested a 60 percent rating be assigned. In December 2011, the Veteran perfected an appeal to the Board after a Statement of the Case (SOC) determination dated in November 2011 denied his claim for a higher rating. During the appeal period, a February 2012 rating decision action assigned an earlier effective date of January 25, 2008, the date VA initially received a service-connection claim for a right foot condition where evidence of herbicide presumptive condition is submitted. However, the 10 percent rating continued, and the RO in the rating decision noted that the Veteran’s increased rating claim for his service-connected CAD was pending before the Board. In an April 2017 rating decision, the Veteran’s rating for his CAD was increased to 60 percent effective February 2, 2017 under Diagnostic Code 7017. Prior to February 2, 2017, the RO evaluated the Veteran’s service-connected heart disease (ischemic) under 38 C.F.R. § 4.104, Diagnostic Codes (DC) 7017-7005 and Diagnostic Code 7017 after February 2, 2017. Under Diagnostic Codes 7017 and 7005 a 10 percent rating is assigned where there is evidence of a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is assigned for workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent rating is assigned for CAD resulting in more than one episode of acute congestive heart failure in the past year, or; when a workload of greater than 3 METs but not greater than 5 METs 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 the maximum rating allowed, is assigned for CAD resulting in chronic congestive heart failure, or; workload of 3 METs or less 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, Diagnostic Codes 7005 and 7017. One MET (metabolic equivalent) is defined as 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 evaluation, and a laboratory determination 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). The Veteran’s VA medical records confirm that he underwent bypass heart surgery in 1992 and in July 2003. See VA treatment notes received March 2008. The base line echocardiogram revealed an ejection fraction of 55 percent with normal chamber sizes and findings were negative for ischemic heart disease (CAD) at that time. A subsequent VA treatment note dated in April 2010 reflects CAD as a diagnosis and reports that the Veteran is followed by an outside cardiologist and currently stable. The April 2010 VA treatment record includes the Veteran’s complaint of pain in chest after exercising. The 2010 VA medical professional noted that the Veteran had prior heart surgery and reported “no significant change since 2008”. In August 2010, the Veteran was afforded a VA examination at which ischemic heart disease was confirmed. A stress test indicated post stress ejection fraction of 53 percent. (See February 2017 VA examination discussed below noting that a normal ejection fraction is 50 percent and above). The examiner indicated that the Veteran did not have a diagnosis of congestive heart failure or pulmonary hypertension. The VA examiner noted a positive exercise treadmill test for ischemia at high workload and METs of 10 and resulted in fatigue. Electrocardiogram (EKG) showed normal heart size normal, sinus rhythm, and second degree atrio-ventricular block. VA treatment records and the VA examiner indicated that the Veteran takes a daily aspirin as treatment for his CAD condition. In September 2010, the Veteran was afforded a VA heart stress study. Abnormal findings were noted during the study and a cardiac catheter was recommended. However, the Veteran requested nuclear scan testing for a second evaluation. A private (electrocardiogram) ECG was performed in July 2011. The findings reported that the Veteran’s baseline ECG shows sinus rhythm and no acute ST or T-wave changes and Lexiscan EKG did not show any changes compared to baseline. Impression: non-diagnostic ECG. Subsequently, the RO in a November 2010 rating decision granted service connection and assigned an appropriate 10 percent evaluation for the Veteran’s CAD, based on the evidence of record, to include the probative 2010 VA examination, which determined a workload of greater than 7 METs but not greater than 10 METs resulting in fatigue. In addition, the Veteran takes a daily aspirin as treatment. There is no competent evidence of record to support the contrary. During his August 2016 Board hearing, the Veteran reiterated that he had a bypass heart procedure in 1992 and then a second bypass procedure in 2003. The Veteran also reported that he is not followed by a VA or private cardiologist or a private physician and that he was not on any cardiac medicine. In addition, he stated that he could not perform any strenuous work other than cutting grass with a riding lawnmower because he continues to experience shortness of breath. The Veteran claimed his heart disorder had worsened and requested a new VA examination. As such, the Board remanded the Veteran’s increased rating heart claim in December 2016, in order to determine the current severity of his ischemic heart disease. Upon remand, the Veteran was afforded a new heart conditions VA Disability Benefits Questionnaire (VA Examination) dated in February 2017. The examiner confirmed the Veteran’s coronary artery disease, with onset 1991. While the examiner noted that the Veteran was treated for his heart condition in 1992 and 2003 with CAD bypass surgery. Upon examination, the examiner noted the following: no continuous medication was required for control of the Veteran’s heart condition, no cardiac hypertrophy or dilatation, no myocardial infarction, no congestive heart failure, no cardiac arrhythmia, and no heart valve conditions found. A February 2017 EKG results reported normal sinus rhythm with 1st degree AV block with occasional premature ventricular complexes, nonspecific ST abnormality. The Veteran underwent an interview based METs test with the 2017 examiner. No response was provided as to why an exercise stress test was not performed. The METs level was found to be more than 3 but less than 5 resulting in dyspnea, fatigue, and chest tightness without chest pain. The examiner reported that this METs level has been found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), brisk walking (4 mph). The examiner noted that the Veteran’s METs level reflects the lowest activity level at which the Veteran reports any of the symptoms attributable to a cardiac condition. However, the examiner reported that the Veteran also has multiple medical conditions that could affect his activity level, including but not limited to obesity, deconditioning, chronic bilateral foot pain and low back pain, obstructive sleep apnea. The February 2017 VA examiner also reviewed a May 2015 x-ray reflecting abnormal findings and remarked that the findings were likely from obesity. She also reviewed subsequent September 2016 nuclear stress test results showing no ischemia, and normal heart size/function. The left ventricular ejection fraction was reported at 68 percent. The 2017 examiner stated that normal ejection fraction is 50 percent and above. The RO in an April 2017 rating decision increased the Veteran’s CAD disability rating from 10 percent to 60 percent disabling effective February 2, 2017, which is the date of the examination and the earliest date as of which it is factually ascertainable that an increase in disability had met the criteria. The METs level was found to be more than 3, but less than 5 resulting in dyspnea, fatigue, and chest tightness without chest pain. The ejection fraction was over 50 percent and no finding of chronic or acute congestive heart failure. There is no competent evidence of record to support the contrary. A January 2018 ECG reflects left ventricular ejection fraction (LVEF): 55-60 percent and normal wall motion/thickness. In May 2019, the Veteran was afforded another VA heart condition DBQ. The examiner noted that the Veteran’s last heart VA examination for this condition was in February 2017 and since that time, the Veteran had been followed by a VA cardiologist. The Veteran reported no new symptoms or new procedures since the February 2017 examination discussed above and was not taking any heart medication. In September 2019, the Board remanded the Veteran’s claim for a SSOC, that included review of additional VA treatment records added to the file after the April 2017 rating decision was issued. A subsequent August 2020 SSOC is of record denying the Veteran’s claim requesting a rating in excess of 60 percent for his service-connected CAD and TDIU. An April 2020 VA treatment note reflects that the Veteran has a present medical history of CAD. The assessment noted no current issues and the plan continued aspirin daily. The Veteran’s representative has asserted that the Veteran is entitled to a higher evaluation of 30 percent for his CAD prior to February 2, 2017, but did not actually point to any evidence to support such an increase. The Board has reviewed the Veteran’s medical records, diagnostic testing and VA examination findings prior to February 2, 2017, but has not found evidence showing a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. Furthermore, while the Veteran’s treatment records refer to a medical history that includes two heart surgeries (1992/2003) and a CAD diagnosis, no diagnosis of acute or chronic congestive heart failure is shown. In addition, the probative August 2010, and February 2017, VA examiners found that the Veteran did not have congestive heart failure at the time of the examinations. As such, a rating in excess of 10 percent is not warranted prior to February 2, 2017. There was also not an ejection fraction of 50 percent or less shown. Likewise, from February 2, 2017, the Veteran’s medical records do not show that the Veteran was diagnosed with congestive heart failure, do not show he had a workload of 3 METS or less, and do not show he had left ventricle ejection fraction of 30 percent or less. Once again, while the Veteran’s treatment records continued to refer to a previous medical history of 1992 and 2003 bypass surgery and CAD diagnosis, no congestive heart failure, no diagnosis of chronic congestive heart failure is shown. In addition, the probative May 2019, September 2019 and April 2020 VA examiners found that the Veteran did not have congestive heart failure at the time of examination. As such a rating in excess of 60 percent is not warranted. Accordingly, the schedular criteria for a rating in excess of 10 percent prior February 2, 2017, and in excess of 60 percent afterwards, for CAD have not been met, and the claim is denied. 2. TDIU In April 2019, the Veteran filed an application for a total disability evaluation based on individual unemployability (TDIU). He alleged that he had been unemployable from April 1, 2004 because of his ischemic heart disease. The Veteran states and the favorable findings from the July 2019 rating decision indicates that he last worked at Virginia Tech College of Engineering. He noted in his TDIU application that he completed two years of college and had to stop working after having a second heart surgery in 2003. The favorable findings also indicated that the Veteran retired after 30 years of work in 2004. While the RO denied this claim in a July 2019 rating decision, this claim is now part and parcel of the Veteran’s request for a higher initial rating for ischemic heart disease. Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran’s ability to secure or follow that type of employment. The Court also provided that to determine 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. For the period on appeal, the Veteran’s service-connected CAD presented in the manner of staged ratings. In this case, the Veteran has only met the schedular criteria for a TDIU for a small portion of the period on appeal. Namely, the period from February 2, 2017 to the present. The Veteran’s service-connected disabilities are CAD rated as 60 percent disabling, tinnitus and a right foot condition rated as 10 percent disabling respectively and left ear hearing loss, left ear condition, left leg, chest and bilateral arm scars are assigned noncompensable disability ratings. As of February 2, 2017, the Veteran’s combined disability rating was 70 percent. As such, the Veteran has met the schedular rating criteria for a TDIU for the time period prior to February 2, 2017. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. However, prior to February 2, 2017, the Veteran’s service-connected CAD is rated at its highest as 10 percent disabling, and no change in his other service-connected disability ratings discussed above. Thus, his combined disability rating was 30 percent and prior to February 2, 2017, thus, the Veteran does not meet the schedular rating criteria for a TDIU prior to February 2, 2017. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. However, for any time period during the period on appeal, whether the Veteran meets the schedular criteria or not, the Board finds that a TDIU is not warranted, as the Veteran’s service-connected disabilities are not shown to have precluded him from securing or following a substantially gainful occupation. The Veteran has asserted that he stopped working in 2004 after his last heart surgery, claiming that he is unable to work due to his service-connected CAD. A June 2010 notation in the claims file reflects that the Veteran cancelled his initial VA heart examination and requested rescheduling because his job was taking him out of state until August 2010. Furthermore, the 2008, 2010 and 2017 VA examiners also reported that the Veteran is retired as of 2004 due to eligibility by age or duration of work. The 2010 heart examiner specifically noted that the Veteran’s ischemic heart disease did not have an effect on usual occupation and resulting work problems and there are no effects of the diagnosis on usual daily activities. The 2016 VA hearing loss, tinnitus examiner and ear or peripheral vestibular conditions reported the conditions impact his ability to work. The Veteran reports hearing loss, binging and ringing, and tinnitus in ear causes nervous condition. He stated that his ear gets infected often and the loss of hearing makes everyday living and communicating difficult. The examiner also reported that due to hearing loss, the Veteran has communication difficulty with other people, including having trouble following a conversation when people are talking, and experiencing a drop in self-esteem and confidence. The Veteran reports tinnitus makes him very nervous, and he needs to be preoccupied in order to keep the tinnitus off his mind. While, the examiner noted communication difficulty with the Veteran’s hearing disabilities, the examiner did not suggest that the Veteran was unable to work. In this case, the heart condition VA examination dated in February 2017 and May 2019, specifically concluded that the Veteran’s CAD condition does not impact his ability to work. The 2017 examiner provided detailed review of diagnostic findings (as discussed above) supporting her conclusion. Ultimately, the examiners found that the Veteran’s CAD symptoms did not significantly limit functional ability in heavy to sedentary prolonged or repetitive physical activities. The February 2017 examiner noted the Veteran also has multiple medical conditions that could affect his activity level, including but not limited to obesity, deconditioning, chronic bilateral foot pain and low back pain, and obstructive sleep apnea. Of note the Veteran is not service connected for a left foot condition, low back pain, or obstructive sleep apnea In addition, the February 2017 examiner opined that the Veteran has a stable minimal severity disease level for his service-connected ischemic heart disease. The examiner concluded that the Veteran’s CAD has minimal to no effect on employment and activities of daily living status post his 1992 and 2003 coronary artery bypass surgeries. While the Veteran believes his service-connected disabilities, including coronary disease, impacts his ability to function occupationally, further review of the evidence does not show that alone they are so severe that they prevent the Veteran from sustaining gainful employment. As such, the Board finds that during the entire period on appeal the Veteran’s service-connected disabilities have not rendered him unable to obtain and follow a substantially gainful occupation. Rather, it appears that the Veteran’s non service-connected disabilities may also contribute to him unable to not maintaining or sustaining gainful employment. Furthermore, the evidence credibly supports that the Veteran retired from employment in 2004 due to age and/or 30 years employment and not his CAD. Thus, a TDIU is not warranted for the period on appeal in which the Veteran meets the schedular criteria, and for the period on appeal in which the Veteran does not meet the schedular criteria and referral for extra-schedular consideration is not warranted. Accordingly, a TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Franklin, 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.