Citation Nr: 21028243 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 14-31 844 DATE: May 10, 2021 ORDER Entitlement to an initial rating in excess of 30 percent prior to June 13, 2012, for ischemic heart disease (IHD) is denied. Entitlement to an initial rating in excess of 60 percent since June 13, 2012, for IHD is denied. Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder is granted. FINDINGS OF FACT 1. Prior to June 13, 2012, the Veteran's IHD had not been manifested by more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but less than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 2. Since June 13, 2012, the Veteran's IHD has not manifest with chronic congestive heart failure, or; workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 3. During the period on appeal, the Veteran's service-connected PTSD has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. Prior to June 13, 2012, the criteria for an initial rating in excess of 30 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.104, Diagnostic Code (DC) 7005. 2. Since June 13, 2012, the criteria for an initial rating in excess of 60 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.104, DC 7005. 3. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from July 1967 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Lincoln, Nebraska Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in July 2019 for further development. During the pendency of the appeal, a June 2020 rating decision granted an earlier effective date for IHD and assigned a 30 percent rating for IHD, effective April 19, 2011. A January 2021 rating decision increased the rating for PTSD from 10 to 50 percent, effective November 20, 2020. The Veteran has not expressed satisfaction with the increased ratings for IHD and PTSD and he is presumed to be seeking the maximum benefit allowed by law and regulation; thus, these matters remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating 1. Entitlement to an initial rating in excess of 30 percent prior to June 13, 2012, for IHD. 2. Entitlement to an initial rating in excess of 60 percent since June 13, 2012, for IHD. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's service-connected ischemic heart disease was rated at 30 percent, effective April 19, 2011, and increased to 60 percent, effective June 13, 2012. Under Diagnostic Code 7005, a 30 percent rating is warranted for 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. 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, resulting 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 resulting 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 Code 7005. A note underneath the Rating Schedule for diseases of the heart explains that 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. 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. 38 C.F.R. § 4.104. The Board finds that an initial rating in excess of 30 percent is not warranted at any point prior to June 13, 2012. The Board notes that the Veteran was evaluated for a potential myocardial infarction in May 2008, but there is no evidence of more than one episode of acute myocardial infarction or congestive heart failure within one year of the date he filed a claim for VA compensation or within one year prior to June 13, 2012. See May 2011, VA examination; May 2008, Private treatment record. Additionally, a May 2011 VA examination for the heart indicated a workload of greater than 5 METs but not greater than 7 METs that resulted in dyspnea and angina. See May 2011, VA examination. The Board acknowledges that in 1995 the Veteran had left ventricular dysfunction with an ejection fraction (LVEF) of 50 percent; however, subsequent records showed LVEF between 55 to 60 percent. See May 2011, VA examination; see also Private treatment records dated November 1995, April 2008, and May 2008. Accordingly, the evidence does not show that at any time during the appeal prior to June 13, 2012, manifestations of the Veteran's IHD reflected, or more nearly approximated, the criteria for the next higher, 60 percent, rating. See 38 C.F.R. § 4.7. Consequently, such rating is not warranted. For the period since June 13, 2012, the Board finds that an initial rating in excess of 60 percent is not warranted. There is no evidence that at any time since June 13, 2012, the Veteran's IHD has been manifested by chronic congestive heart failure, a workload of 3 METs or less, or LVEF of less than 30 percent. See December 2020, VA examination (finding a METs workload of greater than 3 but not greater than 5 that results in dyspnea, fatigue, angina, and dizziness). The December 2020 VA examiner specifically found the Veteran's treatment involved continuous medication for his disability, but that the disability did not include congestive heart failure. A November 2020 echocardiogram showed LVEF 40 percent. Accordingly, the evidence does not show that at any time since June 13, 2012, manifestations of the Veteran's IHD reflected, or more nearly approximated, the criteria for the next higher, 100 percent, rating. See 38 C.F.R. § 4.7. Consequently, such rating is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's ischemic heart disease, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 3. Entitlement to an initial rating in excess of 10 percent prior to November 20, 2020, and in excess of 50 percent thereafter for PTSD. The Veteran seeks an initial rating in excess of 10 percent prior to November 20, 2020, and in excess of 50 percent thereafter for his service-connected PTSD. The Veteran's PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). The rating criteria includes a non-exhaustive list of symptoms, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Bankhead, 29 Vet. App. at 18 (quoting Vazquez-Claudio, 713 F.3d at 116-17) (quotations omitted). Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular disability evaluation. Bankhead, 29 Vet. App. at 18; Vazquez-Claudio, 713 F.3d at 116-17 (quotations omitted). In sum, "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." Bankhead, 29 Vet. App. at 22 (internal citations omitted). The Board finds that an initial rating of 70 percent, but no higher, is warranted during the appeal period. A 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to 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 work-like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.124, DC 9411. Considering the frequency, severity, and duration of the Veteran's psychiatric symptoms, the evidence shows that his PTSD has approximated the criteria for a 70 percent rating during the period on appeal. The Veteran's medical records show that PTSD is productive of symptoms such as suicidal ideation, depression, anxiety, panic attacks, frequent nightmares, flashbacks, chronic sleep impairment, mild memory loss, flattened affect, irritability, agoraphobia, avoidance, disturbances in mood and motivation, difficulty establishing and maintaining effective work and social relationships, hypervigilance, and discomfort in crowds. See VA examinations dated May 2011, September 2012, May 2012, and December 2020; VA treatment records dated July 2012, September 2012, November 2012, May 2013, February 2016, and February 2018. In May 2013, the Veteran requested and was approved to be admitted into a residential rehabilitation treatment program for PTSD due to his previous suicide attempt, suicidal ideation from stress (at home and work), depression, daily nightmares and flashbacks, irritability, agoraphobia, avoidance, and disturbances in mood and motivation. See May 2013, VA treatment record. In February 2018, the Veteran against endorsed suicidal ideations. See February 2018, VA treatment record. The U.S. Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead, 29 Vet. App. at 19 (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas"). Thus, the Board finds that the preponderance of the evidence supports an initial 70 percent rating for the Veteran's service-connected PTSD during the period on appeal. Here, the evidence does not show that the Veteran's psychiatric symptoms were severe enough to result in total occupational and social impairment during the appeal period. The Veteran reported being employed fulltime as Tribal Chairman since 2000, married to his second wife since 1981, living with his two adopted children who are the biological grandchildren of his current wife, and isolating himself from others. See VA examinations dated May 2011, September 2012, May 2014, and November 2020. The Veteran also stated he has a good relationship with his wife, periodic contact with his biological daughter and sister, no contact with his biological son, and that work requires him to interact with others resulting in a lot of stress and anxiety. See November 2020, VA examination; VA treatment records dated May 2011, May 2014, February 2016, and January 2019. Moreover, there is no evidence in the record to suggest gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Thus, as the evidence shows that the Veteran did not exhibit total occupational and social impairment during the appeal period, the Board finds that an initial rating in excess of 70 percent is not warranted. K. ANDERSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.