Citation Nr: 21023594 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-32 340A DATE: April 21, 2021 ORDER Entitlement to a rating in excess of 50 percent for anxiety disorder for the period from March 16, 2012, to September 12, 2014, is denied. Entitlement to a rating in excess of 30 percent for ischemic heart disease from September 12, 2014, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From March 16, 2012, to September 12, 2014, the severity, frequency, and duration of the Veteran’s anxiety disorder symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From September 12, 2014, metabolic equivalent (MET) testing shows the Veteran develops dyspnea, fatigue, angina, dizziness, or syncope at a workload of 7 METs. MET testing shows the Veteran did not develop these symptoms at a workload of 5 METs or less, and there was not evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent or more than one episode of active congestive heart failure in the past year. 3. The Veteran was not prevented from securing or maintaining substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for anxiety disorder for the period from March 16, 2012, to September 12, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. 2. The criteria for entitlement to a rating in excess of 30 percent for ischemic heart disease from September 12, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 3. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.40, 3.41, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1969 to August 1971. These matters come to the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO). In an April 2018 Decision, the Board granted entitlement to an initial 60 percent rating for ischemic heart disease (IHD) prior to September 12, 2014, and denied entitlement to a rating in excess of 70 percent for anxiety disorder from September 12, 2014. The issues of entitlement to a rating in excess of 30 percent for IHD from September 12, 2014, entitlement to an initial rating in excess of 50 percent for anxiety disorder prior to September 12, 2014, and entitlement to TDIU were remanded for additional development. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.§ 1155; 38 C.F.R., Part 4. An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. In deciding the veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating in excess of 50 percent for anxiety disorder for the period from March 16, 2012, to September 12, 2014, is denied. The Veteran seeks entitlement to a rating in excess of 50 percent for his service-connected anxiety disorder from March 16, 2012 to September 12, 2014. As noted above, an April 2018 Board decision denied entitlement to a rating in excess of 70 percent for anxiety disorder after September 12, 2014, so only the rating before September 12, 2014, is currently before the Board. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s anxiety disorder symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the symptoms of the Veteran's anxiety disorder did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. Under the General Formula, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. VA outpatient treatment records, records from the Vet Center, the January 2013 VA examination, and the Veteran’s lay statements show that the Veteran’s anxiety disorder was manifested by symptoms associated with a 30 percent rating, including chronic sleep impairment, depressed mood, anxiety, suspiciousness, and mild memory loss; and symptoms associated with a 50 percent rating, including disturbances in motivation and mood and difficulty establishing and maintaining relationships effective work and social relationships. He also had symptoms that are not listed with a specific rating, such as frequent nightmares, intrusive thoughts, easily being startled, irritability, emotional detachment/isolation and difficulty concentrating. The January 2013 VA examiner described the Veteran's anxiety disorder as characterized by mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or with symptoms controlled by medication. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Further, frequent nightmares, intrusive thoughts, easily being startled, irritability, emotional detachment, and difficulty concentrating are similar to symptoms such as chronic sleep impairment, depressed mood, anxiety, suspiciousness, and disturbances of motivation and mood, which are contemplated by the assigned 50 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. There is no evidence that during the period on appeal, the Veteran’s anxiety disorder was characterized by the type of symptoms contemplated by a 70 percent rating such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships. While the Veteran did not report many close friends, he remained married to his spouse of more than thirty years and maintained a relationship with his son and grandchildren. The Veteran had been retired for many years at the time of the appeal. For all the above reasons, entitlement to a rating in excess of 50 percent prior to September 12, 2014, is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a rating in excess of 30 percent for ischemic heart disease from September 12, 2014, is denied. The Veteran contends that he is entitled to a higher rating because since his heart surgery in 2010, he has not been able to return to his normal activities. The Veteran's ischemic 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. One metabolic equivalent (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. In September 2014, the Veteran submitted a Disability Benefits Questionnaire completed by his private physician, Dr. V.S.. The Veteran did not have any episodes of congestive heart failure. A diagnostic exercise test resulted in a performance of 7 METs. Left ventricular ejection fraction was 60%. A July 2015 echocardiogram by Dr. V.S. showed ejection fraction of 60%. VA outpatient treatment records were also reviewed and reflect that the Veteran has been doing well following his coronary bypass surgery. Although he reported some shortness of breath when going up stairs, he also reported that was able to continue officiating sports games. VA outpatient treatment records also reflect that the Veteran regularly plays golf. A February 2016 echocardiogram showed ventricular ejection fraction of 55-60%. A higher 60 percent rating is not warranted unless there is 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. Here, none of the three criteria was shown, i.e., there was not more than one episode of acute congestive heart failure in the past year (indeed there is no evidence of any episode of congestive heart failure during the period on appeal), the METs level at which symptoms appeared was greater than 5 METs, and the left ventricular ejection fraction was greater than the range of 30 to 50 percent. Thus, the Board concludes that the Veteran’s ischemic heart disease did not meet the criteria corresponding to a higher 60 percent rating during the period on appeal. Accordingly, a rating in excess of 30 percent for ischemic heart disease is denied from September 12, 2014. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. The Veteran also seeks entitlement to TDIU. He contends that he is unable to work because of his service-connected disabilities, particularly his service-connected anxiety disorder and ischemic heart disease. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. However, a total disability evaluation may be assigned where the schedular evaluation 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, 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. §§ 3.340, 3.341, 4.16(a). Here, the Veteran has met this criteria since March 16, 2012. The Veteran is service-connected for anxiety disorder, rated as 50 percent disabling from March 16, 2012, and as 70 percent disabling from September 12, 2014; ischemic heart disease, rated as 60 percent disabling from March 16, 2011, and as 30 percent disabling from September 12, 2014; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as 0 percent disabling. His combined disability rating is 80 percent. The Veteran also has a number of nonservice-connected disabilities, including bilateral knee degenerative joint disease. The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, permitting him to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16(a); see also Moore (Robert), 1 Vet. App. at 358. Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). That said, to receive a TDIU, it is worth repeating that the Veteran’s service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Court also clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). See also Fanning v. Brown, 4 Vet. App. 225 (1993); Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his level of education, prior work experience, and training. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The record reflects that the Veteran has a B.A. degree and was last employed as an insurance salesperson for New York Life in 1995. He worked for this company for twenty years. On a VA Form 21- 8940 Veteran’s Application for Increased Compensation Based on Unemployability submitted in July 2019, the Veteran reported that at the time of his retirement, he signed a non-compete agreement. Thus, it is unclear whether the Veteran did not work after 1995 because he was unable to do so because of a disability, because this non-compete agreement prevented him from pursuing employment consistent with his past work experience, or for some other reason. The Veteran has reported that the office he was employed at is no longer in business, so it was not possible to request any records from the Veteran's former employer that might have clarified the circumstances under which he ended his employment. The Board also notes that were the Veteran to seek employment now, his advancing age and his absence from the workforce for more than twenty-five years would likely impair his ability to find substantially gainful employment, regardless of any current disability. A January 2013 VA examination of the Veteran's ischemic heart disease found that this condition would not affect the Veteran's ability to work. On a September 2014 Ischemic Heart Disease DBQ, the Veteran's private cardiology, Dr. V.S., also conclude that the Veteran's ischemic heart disease does not impact the Veteran's ability to work. A review of VA outpatient treatment records and private medical records from Dr. V.S. reflects that the Veteran's heart condition has been stable since his June 2010 coronary artery bypass graft surgery and that although he has described some shortness of breath when climbing stairs, he has also reported that he participates in officiating sports and golfing and stress tests have shown good exercise tolerance. Thus, while it might be ill-advised for the Veteran to engage is strenuous physical employment, the preponderance of the evidence weighs against finding that the Veteran's ischemic heart disease would prevent light activity or sedentary employment consistent with the Veteran's past work as a salesperson. In a June 2015 notice of disagreement, the Veteran claimed that his psychiatric problems were severe and interfered with his ability to perform activities of daily living, including cooking, cleaning, managing his medications, managing his own funds, and maintaining personal hygiene. He claimed that his memory and concentration are poor and that he is easily confused and distracted. He also reported difficulty getting along with others. However, the January 2013 and December 2014 VA examiners described the Veteran’s service-connected anxiety disorder as characterized by mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or with symptoms controlled by medication. They also determined that the Veteran was competent to manage his own affairs. While VA outpatient treatment records reflect going treatment for depression and anxiety associated with financial stressors, relationship problems, and poor physical health, they do not appear to support the degree of impairment alleged by the Veteran. The Veteran’s treatment providers have not expressed any concern about the Veteran's ability to manage his financial affairs or healthcare decisions. Mental status evaluations have characterized the Veteran's as well-oriented, with intact judgement and no evidence of thought disorder. These records also reflect that the Veteran has reported regularly engaging in a number of leisure activities, including golfing, visiting casinos, and officiating sports games. These records undermine the Veteran’s contentions that his psychiatric problems are so severe he is incapable of performing even basis activities of daily living. Thus, to the extent the Veteran has claimed that his anxiety disorder is so severe he is incapable of maintaining employment, the Board does not find his contentions to be fully consistent with the medical evidence of record or wholly credible. For the above reasons, the Board finds that a preponderance of the evidence weighs against finding that the Veteran's service-connected disabilities alone prevent the Veteran from securing and maintaining substantially gainful employment. While these disabilities result in some level of occupational impairment, the Board finds that the current ratings assigned for the Veteran's service-connected disabilities are adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Accordingly, entitlement to TDIU is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A. Zenzano Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.D. Anderson, 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.