Citation Nr: 21028669 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-43 973 DATE: May 11, 2021 ORDER 1. Entitlement to a 100 percent evaluation for service-connected atrial fibrillation with cardiac pacemaker and aortic and mitral valve insufficiency (heart disability) is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran's favor, the Veteran has experienced dyspnea, fatigue, angina, dizziness, or syncope on a workload of 3 METs or less throughout the appeal period. 2. The Veteran is unemployable due to the service-connected heart disability, for which a total schedular evaluation is being granted herein. The Veteran's other service-connected disabilities do not alone or in combination render the Veteran unemployable. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent evaluation for service-connected heart disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7000 (2019). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1952 to May 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). This issue was previously before the Board in March 2019, when an evaluation in excess of 30 percent for the service-connected heart disability, and a separate claim for an evaluation in excess of 10 percent for a service-connected chronic hyperplastic tonsillitis were both denied. The Veteran appealed the denial of the heart disability claim to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 order granting a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's decision regarding the heart disability because the Board had failed to address all potentially applicable diagnostic codes, and remanded the case to the Board for further development and readjudication. The case has now been returned to the Board for appellate review. 1. Entitlement to a 100 percent evaluation for service-connected heart disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Here, the Veteran filed a service connection claim for the heart disability in October 2015. A March 2016 rating decision granted service connection with an evaluation of 30 percent, and the Veteran filed a timely notice of disagreement in January 2017. Accordingly, the relevant time period is from October 2015. The Veteran's heart disability is rated under Diagnostic Code (DC) 7018-7010. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2019). Here, implantable cardiac pacemakers (DC 7018) is rated as supraventricular arrhythmias (DC 7010). 38 C.F.R. § 4.71a, Diagnostic Code 5258. DC 7018 provides compensation for implantable cardiac pacemakers 38 C.F.R. § 4.104. A 100 percent rating is provided for the two months following hospital admission for implantation or reimplantation. Id. Thereafter, a minimum of 10 percent is provided based on supraventricular arrhythmias (DC 7010), ventricular arrhythmias (DC 7011), or atrioventricular block (DC 7015). Id. DC 7010 provides compensation for supraventricular arrythmias. 38 C.F.R. § 4.104. A 10 percent rating is provided for permanent atrial fibrillation (lone atrial fibrillation) or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. Id. A 30 percent rating is provided for paroxysmal atrial fibrillation or other supraventricular tachycardia with more than four episodes per year documented by ECG or Holter monitor. Id. A private medical opinion from January 2016 stated that the Veteran had a history over the last decade of significant arrhythmias, and that, due to atrial fibrillation, which has been very complicated, they had required the implantation of a permanent pacemaker. The Veteran has also been placed on long-term oral anticoagulation therapy in the form of warfarin, along with rate management with carvedilol. On VA examination in March 2016, the examiner noted that the Veteran had a pacemaker implanted in February 2012. The Veteran had atrial fibrillation, which was intermittent, with more than 4 episodes in the past 12 months as documented by Holter monitoring and monthly monitoring. The METs level was 1-3 METs, which had been found to be consistent with activities such as eating, dressing, taking a shower, or slow walking (2 mph) for 1-2 blocks. The examiner remarked that the Veteran had significant shortness of breath and became faint with more than 3 METs due to the pacemaker being set at 65. August 2017 VA treatment records note that the Veteran had experienced dizzy spells, including blacking out that lasted 30 seconds over the last couple of years. On VA examination in June 2018, the Veteran's pacemaker check showed atrial fibrillation episodes that are lasting longer, with a response as high as 160 beats per minute with shortness of breath. The pacemaker was set at 70 beats per minute, with the Veteran experiencing feelings of passing out 1 to 2 times a day, with 1 to 2 episodes per week of shortness of breath, sweating, and chest pain. The examiner noted that the Veteran had long standing interim atrial fibrillation, and workload was marked as a 3-5 METs level resulting in dyspnea and angina, consistent with activities such as light yard work, mowing the lawn, and brisk walking (4 mph). Here, under DC 7018-7010, an increased rating is not warranted for an evaluation in excess of 30 percent. Under DC 7018, the Veteran was eligible to receive up to 2 months at 100 percent following the implantation of the pacemaker if they had been service-connected at that time. After the 2 months passed, this DC requires rating under an alternative DC, such as 7010 for atrial fibrillation, with a minimum of a 10 percent rating. Under DC 7010, the Veteran is receiving the highest available rating, associated with the diagnosed atrial fibrillation. However, the Board must also consider the other Diagnostic Codes pertaining to diseases of the heart. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). As noted above, the Court JMPR noted the Board's failure to address the Veteran's symptoms under all potentially applicable diagnostic codes, specifically under DC 7000. After a thorough review of the record, the Board finds that an increased or separate evaluation is warranted under DC 7000, for valvular heart disease (including rheumatic heart disease). Under DC 7000, a 30 percent evaluation is warranted when 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 dilatation on electro-cardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted when 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. A 100 percent evaluation is warranted when there is 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. A 100 percent evaluation is also warranted during an active infection with valvular heart damage and for three more months following cessation of therapy for active infection. In a January 2016 private medical report, an examiner opined that given the Veteran's history of significant rheumatic disease while on active duty, it is more likely than not that much of the arrythmia and the valvular abnormalities are a result of that inflammatory process. The March 2016 VA examination also noted that the atrial and mitral valve impairment and atrial fibrillation are symptoms attributed to the in-service rheumatic fever. And in an April 2021 private medical report, an examiner concluded that after a thorough review of the service treatment records, post-service records and pertinent medical literature, the in-service rheumatic fever directly contributed to the development of valvular heart disease and atrial fibrillation. As noted above, the March 2016 VA examination found that the METs level was 1-3 METs, and the examiner noted that the Veteran had significant shortness of breath and became faint with more than 3 METs due to the pacemaker being set at 65. Additionally, the August 2017 VA treatment records noted that the Veteran had experienced dizzy spells, including blacking out that lasted 30 seconds over the last couple of years. And the June 2018 VA examination found that the Veteran had long standing interim atrial fibrillation, and workload was marked as a 3-5 METs level resulting in dyspnea and angina. November 2019 and August 2020 VA treatment records note a left ventricular ejection fraction of 55-60%. In the April 2021 private medical opinion, the examiner addressed the March 2016 VA examination that found the cardiac condition, valvular heart disease and atrial fibrillation, had resulted in 1 to 3 METs to include symptoms of shortness of breath, dyspnea, fatigue, and dizziness, as evidenced by the record. The examiner stated that the heart rate is controlled by the pacemaker, and as such, is incapable of increasing its rate beyond the upper setpoint of 65-70 beats per minute in response to physical exertion or emotional stress. The examiner explained that an inadequate heart rate to compensate for such physiologic demands would leave the Veteran feeling light-headed as if they were about to pass out. The examiner further clarified that if the Veteran's atrial fibrillation caused the heart rate to go up to 160 beats per minute, the ventricles would not have time to fill adequately, resulting in poor perfusion of the brain and similar symptoms. The Board resolves any reasonable doubt in the Veteran's favor, and accordingly finds that the Veteran has experienced dyspnea, fatigue, angina, dizziness, or syncope on a workload of 3 METs or less throughout the appeal period. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, the claim of entitlement to an initial increased evaluation for the service-connected heart disability is granted. 2. Entitlement to a TDIU The Veteran has asserted that they have not worked throughout the appeal period, and therefore a claim of TDIU is presently before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 450-451 (2009). The Veteran is assigned a 100 percent rating for the entire period on appeal. The Board notes that a grant of a 100 percent schedular rating does not necessarily render the issue of entitlement to a TDIU moot, as the TDIU could in certain circumstances render the Veteran eligible for special monthly compensation (SMC). SMC may be warranted if the Veteran has a 100 percent disabling rating for a single disability, and VA finds that TDIU is warranted based solely on disabilities other than the disability that is rated at 100 percent. See Buie v. Shinseki, 24 Vet. App. 242 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, the Veteran has a 100 percent total combined rating for all of their service-connected disabilities. However, in order for TDIU to not be moot, TDIU must be warranted based solely on disabilities other than the disability that is rated at 100 percent, which in this case service connection is in effect for the following disabilities: 1) heart disability at 100 percent; 2) bilateral hearing loss, at a noncompensable rating until May 29, 2018, and a 20 percent rating thereafter; 3) tinnitus at 10 percent; 4) chronic hyperplastic tonsillitis at 10 percent; 4) rheumatic fever at a noncompensable rating; 5) left varicocele at a noncompensable rating; and 6) and surgical chest scar associated with the heart disability at a noncompensable rating. Here, the Board must evaluate whether the Veteran's other service-connected disabilities cause the Veteran to be unemployable. For the reasons that follow, the Board finds that a separate TDIU is not warranted. 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). According to their DD-214, prior to service the Veteran was an equipment operator for a gas and electric company. November 2008 VA treatment records indicate that the Veteran had retired from school administration after 43 years. March 2016 VA treatment records note that the Veteran is a retired teacher and horse trainer. In a December 2020 statement, the Veteran asserted that they have a master's degree in administration, received a life certificate, and was an aspirant with 19 hours towards a doctorate degree. They had been hoping to continue and accept a superintendent position, but that would have required a year of residency and even more hours and stress. The Veteran stated that they took a seasonal management position from 2006 to 2008, but struggled with shortness of breath, dizzy spells, and two resulting falls. On the April 2021 TDIU application, the Veteran indicated that they last worked full time in 2008, that they worked in school administration from 1966 to 1995, and in management at a horse racetrack from 2006 to 2008. The Veteran and their representative have made no arguments for how the Veteran's other service-connected disabilities have made the Veteran unemployable. In an April 2021 brief, the Veteran's representative asserted that the heart disability causes unemployability. On the April 2021 TDIU application, the Veteran also asserted that the heart disability causes unemployability. According to separate March 2016 VA Disability Benefits Questionnaires (DBQs), the tonsillitis and rheumatic fever have no functional impact on the ability to work. According to a May 2018 DBQ, the examiner indicated that the hearing loss did contribute to functional loss, noting that the Veteran reports that the hearing loss is frustrating, and that they are unable to hear individuals without the use of hearing aids and looking at their face. The examiner also indicated that the tinnitus has functional impact, as the Veteran reports that they notice the tinnitus when they try to sleep, and it causes difficulty sleeping. A June 2018 DBQ again noted that the tonsillitis has no functional impact on the Veteran's ability to work. The Veteran's submitted an April 2021 private medical opinion which focused primarily on the severity of the heart disability, and how it caused the Veteran to be unemployable. The private examiner also addressed the hearing loss by noting the May 2018 DBQ, and opined that the hearing loss impacts the Veteran's ability to effectively hear and communicate with others. The examiner stated that the Veteran would be incapable of working even in a sedentary position given the severity of the heart disease and the functional impairment caused by the hearing loss. However, while the Board recognizes the functional impairment noted by the hearing loss, to the extent that the Veteran's service-connected hearing loss has hindered their ability to obtain or maintain gainful employment, the rating schedule already contemplates industrial impairment. Stated another way, evidence of occupational limitations is present in every case in which an evaluation has been assigned for a service-connected disability. See 38 C.F.R. § 4.1 (explaining that disability evaluation percentages "represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations" and "degrees of disability specified 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"); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). ("A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment."). If the Board were to accept the argument that evidence of occupational limitations due to service-connected disabilities necessarily constitutes evidence of unemployability, then entitlement to TDIU would be reasonably raised and warranted in every case where a Veteran challenged the assigned evaluation. Instead, for a Veteran to prevail on a claim for a TDIU the record must reflect some factor which takes the case outside the norm. The sole fact that the Veteran is unemployed or has shown evidence of a difficulty in obtaining employment is not enough. The question is whether this Veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. See 38 C.F.R. § 4.16 (a). Van Hoose, 4 Vet. App. at 361. Here, the private medical examiner is merely pointing to the functional impact of the hearing loss that is already contemplated by the rating criteria. The examiner has not provided any reasoning to explain why the Veteran's level of severity is exceptional to a degree that the hearing loss causes the Veteran to be unemployable. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As for the service-connected left varicocele and surgical scar, the record does not demonstrate any functional impact on the Veteran's ability to work. Again, the Veteran and their representative have made no arguments for why the Veteran's service-connected disabilities other than the heart disability cause them to be unemployable. The record also does not show that the other service-connected disabilities cause the Veteran to be unemployable. Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a TDIU is denied. See 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rogos 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.