Citation Nr: 21024602 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-15 699A DATE: April 23, 2021 ORDER Entitlement to an evaluation in excess of 60 percent for coronary artery disease (CAD) prior to October 10, 2013, is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to October 10, 2013, is granted. FINDINGS OF FACT 1. Prior to October 10, 2013, the Veteran’s coronary artery disease did not result in congestive heart failure, a workload of 3 METs or less that resulted in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of less than 30 percent. 2. From April 26, 2011 to October 10, 2013, the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to October 10, 2013, the criteria for a rating in excess of 60 percent for coronary artery disease have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.104, Diagnostic Code (DC) 7005. 2. From April 26, 2011 to October 10, 2013, the criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied entitlement to a rating in excess of 60 percent for coronary artery disease in a September 2018 decision. The Veteran’s attorney appealed this determination to the Court of Appeals for Veterans Claims (Court), which vacated the Board’s denial pursuant to an August 2019 Joint Motion for Partial Remand (JMPR). The case was remanded for further development in November 2020. That development has been completed, and the case has since been returned to the Board for appellate review. In a February 2021 rating decision, the RO increased the evaluation of the Veteran’s service-connected CAD to 100 percent disabling effective October 10, 2013. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the Board will consider whether an increased rating for CAD is warranted for the period prior to October 10, 2013. 1. Entitlement to an evaluation in excess of 60 percent for coronary artery disease (CAD) prior to October 10, 2013 Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s service-connected CAD has been rated under 38 C.F.R. § 4.104, DC 7005. DC 7005 assigns a 60 percent rating when there is more than one episode of acute congestive heart failure in the past year; when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is assigned for chronic congestive heart failure; or when workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. One MET 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). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks an increased rating from his currently 60 percent rated CAD prior to October 10, 2013. The only rating higher than this is 100 percent. 38 C.F.R. § 4.104, DC 7005. The current appeal period before the Board for the Veteran’s CAD begins on April 26, 2010, the date of the Veteran’s increased rating claim plus the one-year “look-back” period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In January 2011, the Veteran was hospitalized with acute coronary syndrome. He underwent a heart catheterization which showed left ventricular ejection fraction of 50 percent. The Veteran submitted a private Disability Benefits Questionnaire (DBQ) in August 2011 from his treating cardiologist, Dr. C.G., who noted that the Veteran did not have congestive heart failure. The Veteran reported symptoms of dyspnea and fatigue with a workload of 3-5 METs, a level consistent with activities such as light yard work and brisk walking. There was no evidence of cardiac hypertrophy or dilatation. Dr. C.G. noted that his LVEF in January 2011 was 50 percent. See August 2011 DBQ. During a July 2011 VA examination, the Veteran reported dyspnea on exertion with moderate efforts, e.g., walking two blocks. He stated that he is unable to lift heavy objects or walk long distances due to dyspnea and fatigue. There was no evidence of congestive heart failure. A stress test could not be conducted due to his ambulation impairment secondary to a low back disorder. However, his METs level was estimated between 3-5. An electrocardiogram revealed his heart size to be normal and his LVEF was 50 percent. See July 2011 VA examination report. Based on the medical evidence of record, the Board finds that a rating higher than 60 percent is not warranted prior to October 10, 2013. As noted above, CAD is rated under 38 C.F.R. § 4.104, DC 7005. The medical evidence of record does not show that a 100 percent rating is warranted during this time period, as it does not show that the Veteran had 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 of less than 30 percent. Based on these findings, the preponderance of the evidence is against the claim. In the August 2019 Joint Motion, the parties agreed that the Board failed to provide an adequate statement of reasons addressing the evidence of a myocardial infarction during the appeal period and whether it was related to the disability on appeal such that it could have influenced the rating or constituted a new claim. Following the Joint Motion, in a July 2020 brief, the Veteran’s attorney clarified that the Veteran is seeking a 100 percent rating for his heart condition from October 2013 forward or, at a minimum, a temporary 100 percent rating based on his myocardial infarction. Because the Veteran has been awarded a 100 percent disability rating during this time period based on his coronary artery disease, and the Veteran and his attorney have not made any additional arguments on this matter, the Board finds that further discussion is not warranted. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to October 10, 2013 Initially, the Board notes that the claim of entitlement to TDIU has been rendered moot from October 10, 2013, by the award of a 100 percent schedular evaluation for service-connected CAD. See Bradley v. Peake, 22 Vet. App. 280 (2008). The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means 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 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 establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley, 22 Vet. App. at 294. SMC is payable at a specified rate if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot; or is blind in both eyes, with visual acuity of 5/200 or less; or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2019). SMC provided by 38 U.S.C. § 1114(s) is payable where the Veteran has a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently rated as 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 C.F.R. § 3.350(h)(3)(i)(1) & (2) (2019). Since the Veteran has been awarded a 100 percent disability evaluation for his service-connected CAD from October 10, 2013, entitlement to SMC will be considered. From October 10, 2013, the Veteran was also service-connected for diabetes mellitus, type II, rated as 20 percent disabling; peripheral neuropathy of the bilateral lower extremities, rated as 10 percent disabling for each lower extremity; peripheral neuropathy of the bilateral upper extremities, rated as 10 percent disabling for each upper extremity; erectile dysfunction, rated as noncompensable; and other service-connected disabilities including scars rated as noncompensable, not the 60 percent evaluation required by the regulation. There is no indication in the evidence of record that the Veteran was “substantially confined” to his dwelling or its immediate premises because of his disabilities. As such, the criteria for an award of SMC have not been met from October 10, 2013. Moreover, this means that the pending TDIU claim is, in fact, moot from October 10, 2013. Other than the total rating granted for CAD, the Veteran’s other service-connected disabilities were evaluated at 20 percent, 10 percent and noncompensable; thus, the potential for SMC discussed in Bradley and Buie does not apply and consideration of TDIU would result in no additional benefit. Separate from the period on appeal that is moot, the Veteran contends that he is unemployable as a result of the combined effects of his service-connected disabilities. The Veteran is requesting TDIU from April 26, 2011, the date of the claim for an increased rating for CAD. See March 2021 appellate brief. TDIU may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). The Veteran’s CAD is rated as 60 percent disabling from April 26, 2011; therefore, he meets the schedular requirements for TDIU as of that date. In determining entitlement to a TDIU, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Id. Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Such employment may also be held to exist, on a facts-found basis, in instances in which a Veteran is employed in a protected environment, such as a family business or sheltered workshop, and his earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining entitlement to TDIU, consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2015). After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unemployable or unable to secure and follow a substantially gainful occupation on and after April 26, 2011. The Board acknowledges the Veteran suffers from multiple disabilities that would limit his ability to seek a substantially gainful occupation. His coronary artery disease is rated at 60 percent disabling from April 26, 2011, to October 10, 2013, indicating a substantially reduced ability to perform most tasks requiring physical activity. The Veteran submitted a lay statement dated April 2020, stating that he last worked in 2006 for AEE as an electrician. He stated that his service-connected CAD caused pain, pressure, and tightness in his chest all day and he was unable to exert himself without pain. After his open-heart surgery in 2000, he returned to work but had to take time off for doctor’s appointments and sick days. He also experienced fatigue, weakness, and dizziness due to his medications for service-connected disabilities including diabetes and CAD. Due to his service-connected peripheral neuropathy of the lower extremities, he was unable to walk more than one mile. He described daily pain, tingling and numbness in the legs. During a flare-up he would have to go to the office to sit down. In addition, he stated that his service-connected peripheral neuropathy of the upper extremities caused limited movement, pain, and weakness. He was unable to hold a screwdriver and could not use a computer. Due to his lifting limitations, he was given an assistant to help with lifting, carrying, reaching and other tasks. During flare-ups, approximately 1-3 times per week, he was not able to grasp anything without pain and struggled to even write. The Veteran states that his symptoms continued after he retired in 2006 and he can no longer exercise or walk more than one mile due to pain and fatigue. He states he was recently told by his physician to limit the number of laps he takes around the park to prevent stress on his heart. He only drives short distances. Due to his peripheral neuropathy of the bilateral lower extremities, he has difficulty walking and avoids using the stairs. He uses a cane to ambulate. Due to his peripheral neuropathy of the bilateral upper extremities, he can only lift up to 15 pounds for about 5-10 minutes. He describes limited movement of the upper extremities with almost constant pain. It is difficult for him to hold a phone for long periods of time and he does not use a computer. He states that during flare-ups, he cannot hold objects such as a coffee cup or frying pan. See April 2020 affidavit. The Veteran also submitted a June 2020 private vocational assessment. The vocational expert interviewed the Veteran and reviewed the claims file. She noted that after military service, the Veteran was trained in electricity, radio, and TV repair and worked as an electrician at AEE, Puerto Rico’s power company, from 1989 to 2006. As part of his job at AEE, he was required to climb ladders and scaffolds and use tools such as screwdrivers. The Dictionary of Occupational Titles (DOT) defines the occupation of electrician as “skilled” and “medium” in physical demand. The vocational expert opined that the Veteran’s physical limitations due to his service-connected disabilities including CAD and peripheral neuropathy would preclude even sedentary work. She noted that he experiences difficulty walking, reaching and handling objects such as a pencil or screwdriver. The July 2011 VA examiner noted difficulty walking more than two blocks. Even sedentary work would require him to be able to stand and/or walk for up to one-third of a normal workday. He is typically limited to walking no more than 20 minutes. In addition, even in sedentary work, employees are typically expected to be able to use their upper extremities to frequently grasp and handle objects at desk level, such as assembling products, and perform tasks such as writing, typing and using a telephone. As described above, the Veteran stated that he had difficulty holding a screwdriver and experienced pain when holding a pencil during his previous employment, and currently experiences flare-ups of pain 1-3 times per week when he cannot even hold a coffee cup or cooking pan. She also noted that while he was working, he was able to take frequent breaks when needed, up to 15-20 minutes, which would not be tolerated by the typical employer. See June 2020 vocational assessment. As such, considering his total disability picture, his service-connected disabilities inhibited his ability to perform physical activity including prolonged walking, standing, lifting, reaching, and grasping. The record shows that he worked as an electrician his entire career and his skills are not readily transferable to another occupation. Indeed, after his heart surgery in 2000, he needed accommodations such as frequent breaks, unscheduled time off and an assistant. These are accommodations that would not be expected of the typical employer. Although there is evidence that his non-service connected back disorder was also a factor in his decision to retire from AEE in 2006, it is clear that his service-connected disabilities, including CAD and peripheral neuropathy, would have prevented continued substantially gainful employment. The vocational expert explained that because of his difficulty handling and grasping objects such as a pencil and difficulty using a telephone or computer, he is unsuited even for sedentary employment, as that term was defined by the Veteran’s expert. (Continued on the next page)   Accordingly, considering the above evidence and the Veteran’s complete disability picture and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether his service-connected disabilities rendered him unemployable or unable to secure and follow a substantially gainful occupation, and a TDIU is therefore granted from April 26, 2011, to October 10, 2013. For the reasons set forth above, TDIU is moot on and after October 10, 2013, as the Veteran is rated 100 percent disabled as of that date. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.