Citation Nr: 21021747 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-27 060 DATE: April 13, 2021 ORDER Prior to November 28, 2017, a rating in excess of 60 percent for coronary artery disease (CAD) is denied. From November 28, 2017, a disability rating of 100 percent for CAD is granted. A total rating based on individual unemployability (TDIU) prior to October 27, 2016 is granted. From November 28, 2017, special monthly compensation (SMC) at the statutory housebound rate is granted. FINDINGS OF FACT 1. Prior to November 28, 2017, the Veteran’s CAD has not resulted in chronic congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction greater than 30 percent. 2. From November 28, 2017, and resolving reasonable doubt in the Veteran’s favor, his CAD was manifested by chronic congestive heart failure (CHF). 3. From October 27, 2016, the Veteran is in receipt of 100 percent combined disability rating. 4. Prior to October 27, 2016, the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. 5. As of November 28, 2017, the Veteran has a single service-connected disability rated at 100 percent plus additional service-connected disabilities having a combined rating of 60 percent or more involving anatomical segments or bodily systems that are separate and distinct from the sole 100 percent service-connected disability. CONCLUSIONS OF LAW 1. Prior to November 28, 2017, the criteria for a rating in excess of 60 percent for CAD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code DC 7005. 2. The criteria for a rating of 100 percent for CAD beginning November 28, 2017 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code DC 7005. 3. The criteria for entitlement to TDIU prior to October 27, 2016 are met. 38 U.S.C. §§ 1105, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. 4. From November 28, 2017, the criteria for entitlement to SMC at the statutory housebound rate are met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1969 to April 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in April 2019 at which time it was remanded for another VA examination. In November 2018, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Prior to November 28, 2017, a rating in excess of 60 percent for CAD The Veteran is currently rated 60 percent prior to January 6, 2020, and 100 percent, thereafter, under DC 7005. The Veteran’s representative contended that the effective for the 100 percent rating should go back to November 23, 2016. The Board has considered this in its evaluation of whether a rating higher than 60 percent is warranted prior to November 28, 2017. Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease). Under DC 7005, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the past year, or; 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 warranted for 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. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing 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. Id. For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase “30 to 50 percent” means 30 percent through 50 percent. Id. at 380. For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. Id. at 382. Turning to the evidence of record, VA medical records show that in March 2014, the Veteran had a left heart catheterization (LHC) after complaining of left side chest pain. The Veteran was afforded a VA examination in March 2015. He was diagnosed with CAD and unstable angina and he required continuous medication for control of his heart condition. Since his last examination in 2013, he had six stents placed. He had a previous myocardial infarction detected on electrocardiogram (EKG). There was no congestive heart failure (CHF), cardiac arrythmia, heart valve conditions, cardiac hypertrophy, or cardiac dilatation. An interview based METs test was completed which revealed a METs level of greater than 3 to 5 METs with dyspnea and fatigue. The METs limitation was not due solely to the heart condition. The examiner estimated the percentage of METs level limitation as due solely to the heart condition as 30 percent. The other medical conditions limiting METs were low back pain and claudication. Regarding functional impact, he was incapable of physical work, but he was capable of sedentary work. On review of the evidence, the Board finds that a rating in excess of 60 percent for the Veteran’s coronary artery disease is not warranted prior to November 28, 2017. The evidence of record for this period does not demonstrate that the Veteran experienced chronic congestive heart failure, nor did he have a workload of 3 METs or less, and ejection fraction was never less than 30 percent. His symptoms of CAD correspond to the criteria for a 60 percent rating under DC 7005. Therefore, the Board finds that the preponderance of the competent and probative evidence is against entitlement to the next higher schedular rating of 100 percent prior to November 28, 2017. The Board place weight on this 2015 examination report as an in-person examination of the Veteran was conducted to assess the level of severity of his CAD by a medical doctor. 2. From November 28, 2017, a disability rating of 100 percent for CAD From November 28, 2017, VA treatment records show that he went to the emergency room with progressive shortness of breath and was admitted to the hospital on November 28, 2017. The principal diagnosis was atrial flutter. It was also noted that he was being treated for CHF as part of the admission. The Veteran underwent another VA examination in January 2020. His diagnoses included CAD, stable angina, unstable angina, and supraventricular arrhythmia. He was not found to have congestive heart failure or heart valve conditions. It was also indicated that there were no hospitalizations. There was evidence of cardiac hypertrophy. An exercise stress test was not performed due the Veteran’s severe back pain, but an interview based METs test was completed and it revealed a METs level of 1 to 3 METs with symptoms during activity of dyspnea, back pain, sciatica, and chronic obstructive pulmonary disease (COPD). Functional impact could not be determined because his estimated METs was largely due to combination of back pain, bilateral radiculopathy, and COPD. The shortness of breath he felt when walking was likely secondary to COPD. The normal ejection fraction of 65 percent could not be used assess exercised induced cardiac dysfunction since it is measured at rest. The examiner indicated that CHF was not on the VA problem list. In an October 2020 addendum, the examiner opined that the symptom most responsible for his low METs was dyspnea secondary to chronic lung disease. The examiner reasons that it was due to dyspnea because of test results showing a norma Based on the above evidence, and resolving reasonable doubt, a 100 percent rating for CAD is warranted from November 28, 2017. It is noted that the January 2020 VA examiner indicated that the Veteran did not have a history of CHF and that it was not in his medical records. It was also noted that the Veteran was noted hospitalized in the 2020 examination report. However, a review of the treatment records shows that he was hospitalized, treated, and counseled for it in November 2017 and it was noted as an ongoing problem. Therefore, entitlement to a 100 percent rating from November 28, 2017 is granted. 3. A TDIU prior to October 27, 2016 The Veteran seeks a TDIU. He contends that his heart and back disabilities have caused his unemployability per a VA 21-8940 received by VA in 2016. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as “one disability” to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The Veteran reached a 100 percent combined disability rating for his service-connected disabilities from October 27, 2016. In this case, the Veteran filed his application for TDIU in November 2016.  However, he filed a claim for an increased rating for CAD in March 2014, his unemployability claim was raised in connection with that pending appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities indicates that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis.  See Locklear v. Shinseki, 24 Vet. App. 311, 314 n.2 (2011) (finding entitlement to TDIU mooted from the effective date of a 100 percent schedular disability rating); see also Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. at 294 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (Mar. 10, 2010) (withdrawing VAOPGCPREC 6-99). In this case, the Veteran has a 100 percent combined rating based on multiple disabilities beginning October 27, 2016 and is rated at 100 percent for CAD beginning November 28, 2017. Based on this, the Board finds that the ancillary benefit of SMC is part of this appeal. See 38 C.F.R. § 3.155(d)(2) (2020) (stating that once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision (e.g., entitlement to SMC under 38 C.F.R. § 3.350). Here, the criteria for special monthly compensation based on statutory housebound criteria are met from November 28, 2017. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Id. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran’s particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to October 27, 2016, the Veteran was service connected for CAD, rated as 60 percent disabling; diabetes mellitus type II, rated as 20 percent disabling; spinal stenosis, rated as 10 percent disabling; right lower extremity radiculopathy, rated as 20 percent disabling; left lower extremity radiculopathy, rated as 10 percent disabling. He had a combined rating of 80 percent. Therefore, the schedular requirements for TDIU per §4.16(a) were met. Even so, it must be found that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. For the reasons that follow, the Board finds that a TDIU prior to October 2016 is warranted as the Veteran’s service-connected disabilities were at least as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). A VA Form 21-8940 indicated that the Veteran last worked as a truck driver until September 30, 2013. This form also reflects that he completed four years of high school and did not have any other training. The Veteran’s ability to secure and follow a substantially gainful occupation is impacted by the physical effects of CAD, spinal stenosis and bilateral lower extremity radiculopathy. A July 2013 VA back examination noted that functional impact on his ability to work as truck driver. At the time, he had not worked for a month because he was unable to tarp his loads by himself. The tarps weighed twenty pounds. He also had sharp pain in his right lower leg. A May 2013 CAD VA examination noted that he was stiff and sore after driving and when he had to apply or remove tarps, he had to stop several times due to shortness of breath or due to leg pain. A March 2015 CAD VA examination noted that his METs was not only limited by his CAD, but also his back disability. The examiner indicated that he was incapable of physical work, but he was capable of sedentary work. Given the forgoing, the Veteran’s service-connected disabilities precluded him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. He was physically limited by his CAD with symptoms of shortness of breath, dyspnea, and fatigue. This caused him to have trouble with some of the other duties of his job including moving tarps. While the 2015 CAD VA examiner indicated he could do sedentary work, he was also limited by his continuous back and radicular pain that caused him to be stiff and sore after long hauls. In light of the above, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected CAD, spinal stenosis, and bilateral lower extremity radiculopathy rendered him unable to secure and maintain gainful employment. Accordingly, a TDIU is warranted for the appeal period prior to October 27, 2016. 38 C.F.R. §§ 4.3, 4.16(a). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.