Citation Nr: 21032297 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 15-42 896 DATE: May 26, 2021 ORDER Entitlement to an evaluation for a heart disability in excess of 60 percent, but no higher, prior to February 14, 2017, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to February 14, 2017, is denied. FINDINGS OF FACT 1. For the period prior to February 14, 2017, the Veteran's heart disorder is manifested by more than one episode of acute congestive heart failure in the past year; or a 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. 2. For the period prior to February 14, 2017, the competent evidence does not demonstrate that the Veteran's service-connected disabilities alone render him unable to secure or follow a substantially gainful occupation, commensurate with his education and employment background. 3. As of February 14, 2017, the Veteran was awarded a 100 percent total rating along with special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) during the applicable time period, and the issue of entitlement to TDIU after February 14, 2017, is therefore rendered moot. CONCLUSIONS OF LAW 1. Prior to February 14, 2017, the criteria for a rating of 60 percent, but no higher, for heart disorder are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7099-7005 (2019). 2. For the period prior to February 14, 2017, the criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). 3. As of February 14, 2017, the issue of entitlement to a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1981 to March 1990. In February 2017, the Veteran appeared at a hearing before a Veterans Law Judge (VLJ), who has since retired from the Board. In March 2021, the Veteran and his representative were notified via letter that the Veterans Law Judge who had conducted the previous hearing had since retired and were given the opportunity to request a new hearing. Neither the Veteran nor his representative responded to that notice. The Board previously remanded this case for additional development in September 2018. The matter has now returned to the Board for appellate review. 1. Entitlement to an evaluation for a heart disability in excess of 10 percent prior to February 14, 2017. The Veteran's heart disability is rated as 10 percent disabling for the period prior to February 14, 2017. The Veteran contends that a higher evaluation is warranted for this period. The Veteran's heart disability has been evaluated under 38 C.F.R. § 4.104, DC 7099-7005. See 38 C.F.R. § 4.27. 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. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. See 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that an unlisted disease of the heart, under Diagnostic Code 7099, was the service-connected disorder, while the residual condition (to which the Veteran's service-connected disease of the heart is rated by analogy) is coronary artery disease, which is evaluated under 38 C.F.R. § 4.104, DC 7005. Under DC 7005, a 10 percent evaluation is assigned for a workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent evaluation 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 evaluation 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 when a 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. 38 C.F.R. § 4.104, DC 7005. Turning to the record, VA treatment records from October 2011 reveal that the Veteran had left ventricular ejection (LVEF) of 35 percent. Next, the Veteran was afforded a VA examination in April 2012 in connection with his claim. Diagnoses of supraventricular arrhythmia, cardiomyopathy, and interatrial septal defect were found. The Veteran was noted to have had congestive heart failure (CHF); however, the examiner further noted that it was not chronic and that the Veteran had not had any episodes of acute CHF in the past year. There was no evidence of cardiac hypertrophy; but there was evidence of cardiac dilatation on an echocardiogram from December 2011. At the time of the examination the LVEF was 35 percent and wall motion was noted as normal on the December 2011 echocardiogram. An interview based METs test revealed a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea. In a November 2012 clarifying opinion, the examiner found that the Veteran underwent closure of a secundum septal defect during his active military service. The examiner explained that the Veteran had a persistent residual atrial fibrillation. The examiner explained that the catherization with a 60 percent narrowing was not consistent with a diagnosis of coronary artery disease and the Veteran's then current METs of 10.0 were normal. In the absence of an atrial septal defect, and physiologically normal, are thus a normal exercise tolerance test and consistent solely with the septal defect. Therefore, the examiner concluded, in view of a normal METs and in the absence of residual septal defect and in the absence of coronary artery disease, or any other cardiac disease, other than atrial fibrillation, can be associated with a reduced left ventricular output and theoretically reduce the METs, and thus the METs reflect solely the non-existent septal defect. In April 2013, another addendum opinion was obtained to determine whether the Veteran's diagnosis of supraventricular arrhythmia and cardiomyopathy were caused by or were secondary to the Veteran's interatrial septal defect for which he was originally service connected. The examiner found that the Veteran's arrhythmia, supraventricular arrhythmia in the form of atrial fibrillation, and cardiomyopathy were not caused by or secondary to the Veteran's interatrial septal defect for which he was originally service connected. In support of this conclusion, the examiner explained that the Veteran was diagnosed with secundum type atrial septal defect following a complaint of cough and note of heart murmur on examination that led to cardiac workup in 1982. The diagnosis was confirmed by diagnostic testing. Further, the examiner explained that secundum type atrial septal defect is an inborn, congenital cardiac condition that existed at birth. Therefore, the examiner found that the Veteran's secundum type atrial septal defect was not caused by, incurred in, or aggravated by military service. It commonly manifests symptoms during adulthood as part of its natural course of disease, but it is an inborn defect. In light of the fact that the atrial septal defect has been surgically corrected, the examiner further explained that the Veteran's newly developed severe left ventricular dysfunction in 2004 could not be attributed to an atrial septal defect. Indeed, the Veteran's cardiologist's impression was that this was dilated cardiomyopathy. Further, the examiner explained, a repaired atrial septal defect would not lead to any hemodynamic constraint and could not lead to LV dysfunction. Following atrial septal defect repair, there was clear documentation that LV and RV function were normal. Therefore, the examiner found that the LV dysfunction diagnosed in 2004 was from another disease and could not be due to repaired atrial septal defect. Because of the severe LV dysfunction, the atrial fibrillation/supraventricular arrhythmia was more likely due to the dilated cardiomyopathy and not due to atrial septal defect repair. Private treatment records from August 2014 show that the Veteran's overall left ventricular systolic function was moderate-severely impaired with LVEF between 30 to 35 percent. Additional private treatment records from August 2015 provide a statement from an examiner that the Veteran's atrial fibrillation was due, at least in part, to his history of atrial septal defect and related repair along with his related TR and PHTN. The Veteran's cardiovascular risk factor profile was negative for hypertension, negative for peripheral vascular disease and negative for sedentary lifestyle, but positive for diabetes for abnormal lipid profile and positive for obesity. In February 2017, the Veteran and his spouse testified at a Board hearing. During his testimony, the Veteran explained that he experienced dizziness, loss of balance, and shortness of breath due to his cardiac disability. Further, he related that his spouse had served as his caregiver for the previous 12 years. Also, the Veteran testified that after the repair of his atrial septal defect, he was advised that his heart would never be the same. Moreover, the Veteran explained that his later cardiac disorders were related to his atrial septal defect. A July 2017 VA medical opinion was obtained with respect to the Veteran's additional cardiac disorders. The examiner opined that the Veteran's additional cardiac disorders were at least as likely as not due to or the result of his service-connected atrial septal defect. In support of this conclusion, the examiner explained that atrial septal defects create excessive flow of blood into the right atrium, right ventricle, and pulmonary artery. This enlarges the right atrium and right ventricle (dilation) and over the years can cause high blood pressures in the pulmonary artery that will eventually distort its shape and may rarely damage the blood vessels in the lungs, resulting in CHF presentation of cardiogenic pulmonary edema. Therefore, the examiner found that the additional cardiac anomalies were the result of the service-connected condition; the new conditions evolved secondary to the Veteran's cardiac surgical procedure. Pursuant to the Board's September 2018 remand, another VA opinion was obtained in connection with the Veteran's claim. The examiner determined that the Veteran's additional condition of atrial fibrillation was directly due to or related to the service-connected diagnosis. In support of this conclusion, the examiner explained that atrial fibrillation is a common complication in individuals with atrial septal defects. The examiner went on to discuss that while surgical repair or percutaneous closure of atrial septal defects are equally effective in reducing mortality and symptoms, it is limited in preventing or curbing atrial fibrillation. As the evidence shows the Veteran's symptoms have been consistent for the period prior to February 14, 2017, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's heart disability warrants a rating of 60 percent, but no higher, for the period prior to February 14, 2017. The Board also finds that a higher rating is not warranted for the period prior to February 14, 2017. Specifically, at no point during this period does the competent medical evidence of record show that the Veteran has coronary artery disease resulting in chronic CHF, or work load of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent. The Board has considered other diagnostic codes applicable to the Veteran's claim. However, as discussed in detail above, the evidence indicates that the Veteran's symptoms are adequately contemplated under Diagnostic Code 7099-7005. Therefore, the Board finds that no other diagnostic codes would be appropriate to evaluate the Veteran's heart disability. 38 C.F.R. § 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran contends that he is unable to secure or follow substantially employment as a result of the collective impact of his service-connected disabilities for the time period in question. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. 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. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2018). In reaching such a determination, 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). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). When considering whether the Veteran's disabilities meets this requirement, disabilities resulting from a common etiology or single accident will be considered as one disability. Id. Prior to February 14, 2017, the Veteran was service-connected for coronary artery disease with congestive heart failure, supraventricular arrhythmia and post-operative atrial septal defect at 10 percent disabling; tinnitus at 10 percent disabling; and stroke at 10 percent disabling. The Veteran's claim for a TDIU was received by the Regional Office on January 12, 2012. In light of the grant above, the Veteran's heart disability is now rated as 60 percent disabling for the period prior to February 14, 2017. Thus, from January 12, 2012, the Veteran met the minimum percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16 (a). What remains to be determined is whether the Veteran's service-connected disabilities rendered him unemployable, for the period from to January 12, 2012 to February 14, 2017. For the Veteran to prevail in a claim for TDIU, the evidence must show that the Veteran was unable to pursue a substantially gainful occupation due to his service-connected disabilities. The sole fact that a Veteran 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 or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his January 2012 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full time as a restaurant manager in May 2009. He claimed that his service-connected disabilities made him too disabled to work in March 2004. The Veteran reported that he had completed four years of college as well as completing technical training at a vocational school. He further reported that he had tried to obtain employment since becoming too disabled to work. In February 2012, the Veteran was afforded a VA examination in connection with his heart disability. At the time of the examination, the examiner noted that the Veteran's heart disability did not impact his ability to work. At an August 2012 VA examination, the VA examiner determined that due to the Veteran's heart disability, the Veteran could not be employed in a job that requires heavy manual labor. However, the examiner also found that the Veteran was employable in jobs that did not require heavy physical exertion. Likewise, an April 2013 VA examination for the Veteran's service connected stroke, the examiner noted that the Veteran's central nervous system disorders did not impact his ability to work. At the February 2017 Board hearing, Veteran's representative asserted that the Veteran was found unable to benefit from return to work services provided by the VA. Specifically, the representative related that the Veteran had tried to volunteer with Vocational Rehab Services, but he was turned away because of the effect of his service-connected disabilities. In light of the above, the Board finds that the cumulative effects of the Veteran's service-connected heart disability, tinnitus, and stroke, did not render him unable to secure or follow a substantially gainful occupation for the period prior to February 14, 2017. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). Thus, the Board finds that the evidence of record does not support the grant of TDIU for the period prior to February 14, 2017. Notably, the competent medical evidence does not support a conclusion that the Veteran's service-connected disabilities alone precluded him from obtaining or maintaining gainful employment during this time. Importantly, the VA examinations for this period consistently report across all reviewed disabilities that the Veteran's service-connected disabilities did not impact his ability to work. In particular, the August 2012 VA examiner distinguished that the Veteran would be able to be employed in occupations that did not require heavy physical exertion. Although the Veteran's representative asserted at the February 2017 Board hearing that the Veteran's service-connected disabilities precluded the Veteran from even participating in VA's Vocational Rehab program, this assertion is not otherwise supported in the record. Although the Veteran believes that he could not secure or follow a substantially gainful occupation as a result of his service-connected disabilities for the period prior to February 14, 2017, the more persuasive medical evidence is against the claim. The Board notes that, as a lay person, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as whether he can secure or follow a substantially gainful occupation as a result of service-connected disability. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Any probative value of the Veteran's own conclusions is far outweighed by that of the competent medical evidence that indicates his service-connected disabilities were not productive of impairment that would rise to the level of unemployability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Board acknowledges the functional effects of the Veteran's service-connected disabilities as reflected by his overall 100 percent schedular evaluation as of February 14, 2017. The Board also acknowledges the Veteran's reported symptoms of fatigue and weakness during this time. However, after considering the totality of the record, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation commensurate with his work and education history. While those disabilities which were service-connected did have functional impairment which affected his ability to work, they did not alone render him unemployable. Therefore, the Veteran is not entitled to a TDIU evaluation for the period prior to February 14, 2017. Finally, the Board notes that from February 14, 2017, the Veteran was properly granted special monthly compensation under 38 U.S.C. § 1114 (s) when he had a 60 percent evaluation for his heart disability. During the remaining period on appeal, 38 U.S.C. § 1114 (s), is not applicable. The issue of entitlement to TDIU as of February 14, 2017, is considered moot, as the Veteran is already in receipt of a combined schedular evaluation of 100 percent during this period as well as SMC under U.S.C. § 1114(s) when applicable. 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). In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C. § 5107. Michael D. Lyon Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Scanlan, 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.