Citation Nr: 21028156 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-11 475 DATE: May 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for atherosclerotic cardiovascular disease on an extraschedular basis pursuant to 38 C.F.R. § 3.321 is denied. FINDING OF FACT The Veteran's atherosclerotic cardiovascular disease does not result in symptoms not contemplated by the applicable rating criteria pertaining to this disability. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for atherosclerotic cardiovascular disease on an extra-schedular basis pursuant to 38 C.F.R. § 3.321 has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321; 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty service from May 1965 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board denied an initial rating in excess of 10 percent for atherosclerotic cardiovascular disease (heart condition). The Veteran subsequently appealed the denial of such issue to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion for Remand (JMR) that vacated the Board's January 2019 decision to the extent that the Board failed to address the Veteran's expressly raised argument that referral for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) was warranted. In December 2019, the Board again denied an initial rating in excess of 10 percent for his heart condition. The Veteran subsequently appealed the denial of such issue to the Court. In December 2020 the Court granted a JMR that vacated the Board's December 2019 decision to the extent that the Board failed to address the Veteran's expressly raised argument involving a precedential opinion issued in August 1996 by VA General Counsel regarding extraschedular consideration under 38 C.F.R. § 3.321(b)(1). The January 2019 decision also remanded the issues of entitlement to service connection for hypertension, diabetes mellitus type II, and a total disability rating based on individual unemployability (TDIU). While on remand the RO granted service connection for hypertension and diabetes but denied service connection for TDIU. A May 2020 Board decision remanded the claim for TDIU again for extra-schedular consideration. In a June 2020 rating decision the RO issued a rating decision denying service connection for TDIU to which the Veteran timely appealed and asserted the TDIU claim was not in fact under the updated Appeals Modernization Act (AMA) but rather the prior Legacy system of appeals. As a result, November 2020 Board decision dismissed the TDIU claim under the AMA system, reverting the appeal back to the Legacy system. However, the claim for TDIU is pending development at the AOJ and will be addressed in a subsequent decision. As a final preliminary matter, the Board notes that additional evidence, to include VA treatment records and unrelated VA examination reports, has been associated with the record since the issuance of the December 2016 statement of the case. However, as such are irrelevant or contain findings that are duplicative of those previously considered by the AOJ, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. 38 C.F.R. § 20.1304 (c). 1. An initial rating in excess of 10 percent for atherosclerotic cardiovascular disease on an extra-schedular basis. As a preliminary matter, the Board notes that the December 2020 JMR was narrow in scope. Specifically, while it moved the Court to vacate the Board's December 2019 decision as to the denial of a higher initial rating for the Veteran's heart condition on an extra-schedular basis under 38 C.F.R. § 3.321, the only error identified therein was the Board's failure to provide an adequate statement of reasons or bases for why referral of such claim for extra-schedular consideration pursuant to § 3.321 was not warranted when considering the VA General Counsel 6-96 precedential opinion. In this regard, no error in the Board's denial of the Veteran's initial rating claim on a schedular basis was identified nor error in evaluation of the law outside of considering VA General Counsel 6-96. The Veteran's representative who entered into the JMR is an attorney with extensive experience in VA litigation. "[W]hen an attorney agrees to a [JMR] based on specific issues and raises no additional issues on remand, the Board is required to focus on the arguments specifically advanced by the attorney in the motion, see Forcier[v. Nicholson, 19 Vet. App. 414,] 426 [(2006)], and those terms will serve as a factor for consideration as to whether or to what extent other issues raised by the record need to be addressed." Carter v. Shinseki, 26 Vet. App. 534, 542-43 (2014), (vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015). Furthermore, neither the Veteran nor his attorney have subsequently submitted evidence or argument addressing any other matter involving his claim for a higher initial rating for atherosclerotic cardiovascular disease. Therefore, based on the foregoing, and in the interest of administrative efficiency, the Board will proceed by addressing only that aspect of its December 2019 decision that the JMR identified as inadequate. Id. In short, the only question presently before the Board is whether referral for extra-schedular consideration pursuant to 38 C.F.R. § 3.321 for an initial rating in excess of 10 percent for his heart condition under Diagnostic Code 7005 is warranted when considering VA General Counsel 6-96. The Veteran's representative asserted that the Veteran was entitled to extraschedular consideration for his heart condition as this disability impacts the Veteran's earning capacity. The Veteran's representative in a January 2017 correspondence asserted that the VA's General Counsel precedent opinion 6-96 required a referral for extraschedular consideration based on an interference with earning capacity due to his heart condition. Specifically, the Veteran asserts he was precluded from his position as a pilot in 2003 as a result of a coronary stent. See January 2017 third party correspondence. From VA General Counsel 6-96, the representative specifically quotes, "...only where the disability picture presented by the Veteran would, in the average case, produce impairment of earning capacity beyond that reflected in VA's rating schedule or would affect earning capacity in ways not addressed in the schedule, such as by requiring frequent hospitalization or otherwise interfering with employment." As stated above, this opinion was issued by the VA in August 1996. It should also be noted that per the VA Office of General Counsel, "The General Counsel of the Department of Veterans Affairs issues written legal opinions having precedential effect in adjudications and appeals involving Veterans' benefits under laws administered by VA. The General Counsel's interpretations on legal matters, contained in such opinions, are conclusive as to all VA officials and employees not only in the matter at issue but also in future adjudications and appeals, in the absence of a change in controlling statute or regulation, Court decision, or a superseding written legal opinion of the General Counsel." See the General Counsel of the Department of Veterans Affairs website. In summation, while the opinion of the General Counsel was precedent in 1996, the Court has since provided further precedent on this issue that requires the evidence to show an "exceptional" disability picture prior to considering the effects of impaired earning capacity. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); Long v. Wilkie, No. 16-1537 (December 30, 2020) As stated above, an extra-schedular rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun, 22 Vet. App. 111, the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. The Court in Long, No. 16-1537 (2020) reiterated that to warrant referral for extraschedular consideration, a disability must first be deemed so exceptional or unusual that it renders application of the regular schedular ratings impractical. See 38 C.F.R. § 3.321(b)(1) (2020); Thun, 22 Vet. App. 111. In determining whether a Veteran's symptomatology is "exceptional" under Thun, the Court in Long provided a set of six "guiding considerations." See Long, No. 16-1537 (2020). First, the sole focus of Thun's first step is on the ability of the rating schedule to evaluate the Veteran's symptomatology; extraschedular consideration is not applicable to claims that may be properly evaluated with conventional schedular rating tools. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019). Second, Thun's first step deals exclusively with whether the Veteran's symptoms are exceptional, whereas Thun's second step considers the functional effects of those symptoms. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). In short this means that prior to assessing the functional effects of the Veteran's symptoms, such as interference with earning capacity, there must first be evidence to support that the Veteran's disability is so exceptional, the current disability rating does not compensate for his level of disability. Third, where a symptom or impairment is not compensable under the rating schedule, it also does not warrant extraschedular consideration as this would amount to a backdoor means to obtaining compensation for a condition the rating schedule intends to exclude. Fourth, extraschedular consideration is not warranted for symptoms or effects that lack a nexus to service or to a service-connected disability. Fifth, the Board is only required to discuss the theories of entitlement raised by the Veteran or reasonably raised by the record. Sixth, in reviewing the Board's analysis of referral for extraschedular consideration, the CAVC will be mindful of the rule against prejudicial error. Thus, a failure of the Board to discuss whether extraschedular consideration is warranted for a particular symptom does not require an automatic remand. See Long, No. 16-1537 (2020). Once the first factor of Thun has been fulfilled, the next consideration states that if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that there are factors such as a marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. As will be explained further herein, the Board finds that the first step of the Thun analysis has not been met as the Veteran's heart condition does not result in symptoms not contemplated by the applicable rating criteria for such disability. Therefore, as such rating criteria reasonably describe his disability level and symptomatology, the first step of Thun has not been met and referral for an extra-schedular rating pursuant to 38 C.F.R. § 3.321 is not warranted. In this regard, the Veteran's heart condition is rated as 10 percent disabling pursuant to Diagnostic Code 7005, which is assigned when documented coronary artery disease (CAD) produces dyspnea, fatigue, angina, dizziness, or syncope with a workload of greater than 7 METs (metabolic equivalent) but not greater than 10 METs, or when continuous medication is required. 38 C.F.R. § 4.104. As discussed in detail in the Board's January 2019 and December 2019 decisions, the evidence of record reflects that the Veteran's CAD was noted to be stable, with a normal nuclear stress test in January 2015 and a normal standard transesophageal echocardiography in January 2014, as documented in February 2011, February 2012, February 2013, February 2014, February 2015, February 2016, and February 2017 VA treatment records. Further, the Veteran denied any new cardiovascular complaints at such appointments. Additionally, at his Federal Aviation Administration physical in January 2012, it was noted that everything seemed to be going well and he indicated he stayed active and exercised on a regular basis. A January 2013 private physical note reflects the Veteran had good exercise tolerance with no exertional symptoms of CAD. A January 2014 private physical examination reveals the Veteran had CAD and had a recent treadmill test that the examiner noted was good. Further, the Veteran reported remaining very active physically. Similarly, in a January 2015 letter, the Veteran's private treating cardiologist, Dr. M.D., indicated the Veteran underwent percutaneous intervention of the right coronary artery in July 2004 had done very well since that time. Specifically, he had not had any episodes of chest pain and exercised on a regular basis. The Veteran underwent an exercise stress test that month and exercised for thirteen minutes and eighteen seconds in a Bruce protocol, which was "greatly beyond his predicted exercise capacity for age." He did not have any chest pain during the test and Dr. M. D. noted that the Veteran had a very high level of functional capacity with no evidence of recurrent myocardial ischemia. In addition to the foregoing, the Veteran underwent an August 2016 VA examination, at which time there no evidence of cardiac hypertrophy or dilatation and left ventricular ejection fraction was 60 percent. While he had had a stent placed in 2004, his current treatment only included continuous medication and regular consultation with his cardiologist. Furthermore, the Veteran denied any symptoms relating to his heart disorder; rather, he reported that he continued to cycle, hike, and go to the gym regularly. At an interview based METs test, the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. The examination report notes that a January 2016 exercise stress test revealed normal exercise capacity with a METs level of 12.3 and there was no evidence of ischemia. The examiner indicated that an estimated METs level due solely to the Veteran's cardiac condition was better described as greater than 7 but 10 or less, reasoning that ejection fraction was a more objective measure of cardiac function and reflection of the Veteran's functional status than METs. The Veteran also stated a CT angiography was performed in January 2015 and that the results were normal. Furthermore, an electrocardiogram revealed arrhythmia, described as a right bundle branch block, there was no indication that such finding produced any functional impairment. Based on the lay and medical evidence of record, the Board finds that the Veteran's heart condition requires continuous medication and results in a workload ability of 7 to 10 METs. Furthermore, he has consistently denied any symptoms associated with his heart disorder and, while he has reported that he is unable to perform certain physical activities, to include jogging and skiing, due to such disability, such impairment is fully contemplated by the currently assigned 10 percent rating under Diagnostic Code 7005. Specifically, the limitation in his METs considers the fact that his physical activities may be restricted to a certain extent due to his heart disability. The Court has stressed that Thun step one is not a "mechanical test;" thus, it is not automatically satisfied just because a certain symptom or functional effect is not expressly listed in a Diagnostic Code. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2016) (holding that the rating criteria for hearing loss contemplated the full range of symptoms related to decreased hearing, even though the Diagnostic Code failed to list any symptoms but relied solely on audiometric tests). However, the Veteran nor the medical records on file provide any information regarding the symptoms he is currently experiencing due to his service-connected heart condition that are not contemplated under his current disability rating. Rather the Veteran relies on the VA General Counsel 6-69 which suggests that if there is an impairment of earning capacity beyond what the VA disability rating accounts for, an extraschedular referral is necessary. However, as explained above, current case law under Thun and Long both state that the first step of Thun, a showing of an exceptional disability picture, is required before interference with employment should be considered. See Thun, 22 Vet. App. 111; See Long, No. 16-1537 (2020). As a result, the Court has made the VA General Counsel 6-96 opinion moot in that it has determined there must first be a showing of an "exceptional" disability picture and then a showing of an additional factor such as impaired earning capacity prior to obtaining an extraschedular referral. The Court in Long stated consideration of an impaired earning capacity is measured only after the first step under Thun has been satisfied, not in conjunction with. See Long, No. 16-1537 (2020). As a result, in considering the six guiding principles set out by the Court in Long, the Veteran has not shown his disability picture is exceptional. His disability can be rated using conventional schedular considerations under Diagnostic Code 7005 as none of the Veteran's symptoms of record are outside the scope of the rating criteria. Thus, the assigned schedular rating is adequate and referral for extra-schedular consideration under 38C.F.R. §3.321 is not warranted. As the Board has determined that the first step under Thun has not been met, there is no need to continue to step two of the Thun analysis, i.e., whether the disability exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." In this regard, the Board notes that the basis of the Veteran's claim appears to be that he lost his flying status as a pilot due to the placement of a stent for a blocked artery in 2003. However, as his heart condition does not result in symptoms not contemplated by the applicable rating criteria for such disability, the Board need not address whether such disability resulted in marked interference with employment. Rather, such argument is more appropriately addressed by the Veteran's pending TDIU claim, which was dismissed by the Board under the Appeals Modernization Act in November 2020 and is awaiting the issuance of a supplemental statement of the case under the prior Legacy system at the RO. Ultimately, the Rating Schedule is intended 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. Here, the symptoms and resulting impairment reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In contrast to his assertions, the evidence does not establish that the disability picture associated with his heart condition is exceptional such that the available schedular evaluation is inadequate. Finally, while the Veteran relies on General Counsel 6-96, recent precedential case law from the Court in Thun (2008) and Long (2020) provide a current insight as to the proper procedure in determining if an extraschedular referral is necessary. This current precedent does not consider the Veteran's interference with employment unless the evidence of record first proves the Veteran's disability picture is exceptional and thus not contemplated by the schedular criteria. As stated above, the Veteran has not asserted this his heart condition is producing symptoms so contrasting to the rating criteria that there is no possible way the criteria could account for it. As such, the Board finds that referral of the claim for extra-schedular consideration under 38 C.F.R. § 3.321 is not warranted. In reaching such determination, the Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's heart condition on an extra-schedular basis pursuant to 38 C.F.R. § 3.321.Therefore, the benefit of the doubt doctrine is not applicable to the instant appeal and such claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran's appeal is denied. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.