Citation Nr: 21030766 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 20-06 839 DATE: May 19, 2021 ORDER Entitlement to a disability rating in excess of 30 percent prior to January 14, 2019 for coronary artery disease status post bypass graft is denied. REMANDED Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT For the period prior to January 14, 2019, the Veteran's CAD status post CABG was not manifested by more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 metabolic equivalents (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. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 30 percent prior to January 14, 2019 for coronary artery disease status post bypass graft have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1966 to June 1968. 1. Entitlement to a disability rating in excess of 30 percent prior to January 14, 2019 for coronary artery disease status post bypass graft The Veteran contends that his coronary artery disease status post bypass graft (CAD status post CABG) is worse than contemplated by the currently assigned 30 percent rating prior to January 14, 2019. After a thorough review of the evidence, the Board finds that an increased disability rating is not warranted. The Board notes that the Veteran's claim for increased rating for CAD status post CABG includes evidence that reasonably raises the issue of entitlement to TDIU, which is remanded below to the AOJ for development. The Veteran's CAD status post CABG is currently assigned a 30 percent rating under Diagnostic Code (DC) 7017 prior to January 14, 2019. The Veteran's effective date for service connection is August 18, 2017. The Board notes that in a December 2019 rating decision, the AOJ assigned a 100 percent disability rating for the Veteran's CAD status post CABG from January 14, 2019. As that is the highest available disability rating, the issue is no longer under appeal from January 14, 2019. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran's CAD status post CABG is currently rated under Diagnostic Code 7017, coronary bypass surgery, which provides a 30 percent rating for 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 electrocardiogram, echocardiogram, or x-ray. A 60 percent rating is provided 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. A 100 percent rating is provided for 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. See 38 C.F.R. § 4.104. The Veteran submitted medical treatment records dated November 30, 2017 with a DBQ for heart conditions. The medical provider noted that the Veteran experienced fatigue with an exertion of 7 to 10 METs. The examiner noted evidence of cardiac hypertrophy or dilatation. The examiner checked the box for "yes" for impact on work and wrote that the Veteran continued to have "exertional chest pain and sternal wound pain which significantly limits his functional status." On the related medical testing, the documentation showed a left ventricular ejection fraction of 75 percent. The Veteran underwent a VA examination for cardiac conditions in December 2017. The examiner noted no cardiac hypertrophy or dilatation. The examiner recorded left ventricular ejection fraction of 60 percent. The Veteran denied symptoms related to cardiac diagnosis for METs interview-based testing. The Board notes that the Veteran had submitted a treadmill results test with the previous private medical treatment records. In the section for impact on work, the examiner checked the box for "yes" and then wrote, "the impact of the heart condition on the claimant's ability to work is s/p CABG." The Veteran submitted private treatment records dated May 2018 with results of CT thorax scan, and impression from the medical provider of, "evidence of prior CABG again without complete healing of the sternal defect." On the July 27, 2018 notice of disagreement, the Veteran listed that he had symptoms of pain in chest, shortness of breath, "tiredness and weakness, constantly; depression is severe; continuous medication is required." The Veteran is competent to report subjective symptoms such as chest pain, shortness of breath, tiredness and weakness. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board does not question his credibility in that regard. However, the Veteran is not considered competent to assess the relative severity of the CAD status post CABG as it relates to the criteria in the Diagnostic Code, as doing so involves medical testing and medical knowledge. See Kahana v. Shinseki, 24. Vet. App. 428 (2011), 24 Vet. App. at 435. The Board acknowledges that the increase from 30 percent to 100 percent, effective January 14, 2019, is a significant increase in rating. However, the Board will not substitute its own medical judgement for that of the January 2019 VA examiner. The increase in rating to 100 percent is based on the METs level shown in the January 2019 VA examination report. The evidence of record prior to this date does not support that the schedular criteria for a rating in excess of 30 percent had been met. 0 Therefore, the Board concludes that for the period prior to January 14, 2019, the entitlement to an evaluation in excess of 30 percent for the Veteran's CAD status post CABG is not warranted. As the preponderance of the evidence is against assigning a higher rating prior to January 14, 2019, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to total disability based on individual unemployability (TDIU) is remanded. The Board notes that the matter of entitlement to a TDIU has been implicitly raised as part and parcel of the Veteran's claim of entitlement to higher initial ratings for the service-connected CAD status post CABG pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). When a request for a TDIU is made during the pendency of a claim, whether expressly raised by a veteran or reasonably raised by the record, it is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of the initial adjudication of the claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Thus, the issue of entitlement to a TDIU is before the Board. However, the issue of entitlement to TDIU has not been developed nor considered by the RO in the first instance. Therefore, the Board remands the TDIU issue to the RO for development and adjudication. A total rating based on unemployability may be granted if a veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16; see also 38 C.F.R. §§ 3.340(a), 3.341(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The matters are REMANDED for the following action: 1. Develop the Veteran's TDIU claim under Rice. Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. Then adjudicate the claim for TDIU. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.