Citation Nr: 21032361 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-35 673 DATE: May 26, 2021 ORDER A rating in excess of 10 percent prior to September 20, 2016, and a rating in excess of 30 percent from September 20, 2016, to January 21, 2020, for coronary artery disease, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to August 25, 2015, is denied. FINDINGS OF FACT 1. Prior to September 20, 2016, the Veteran's coronary artery disease required continuous medication, but was not manifested by 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, dilatation, or left ventricular dysfunction. 2. From September 20, 2016, to January 21, 2020, the Veteran's coronary artery disease was not shown to be manifested by 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. 3. Prior to August 25, 2015, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to September 20, 2016, for coronary artery disease, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.105, Diagnostic Code (DC) 7005. 2. The criteria for a rating in excess of 30 percent from September 20, 2016, to January 21, 2020, for coronary artery disease, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.105, DC 7005. 3. The criteria for entitlement to a TDIU, prior to August 25, 2015 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in Army from December 1965 to December 1967, including service in Vietnam. In November 2019, the Board remanded the above matters along with the issue of entitlement to service connection for a low back disorder for further development. In a June 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for lumbar degenerative disc disease, L4-5; granted a 100 percent rating for coronary artery disease, effective from January 21, 2020; and granted entitlement to a TDIU effective December 1, 2015, until January 21, 2020 (the date of the total rating for coronary artery disease). In May 2021 written argument, the Veteran's representative addressed the issue of entitlement to service connection for a low back disorder. However, as noted, this issue was granted by the AOJ in the June 2020 rating decision. As this award represents a full grant of the benefits sought with respect to this issue, the matter is resolved and is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 1. Entitlement to a rating in excess of 10 percent prior to September 20, 2016, and a rating in excess of 30 percent from September 20, 2016, to January 21, 2020, for coronary artery disease. As noted above, since the Board's remand in 2019, a 100 percent (maximum) rating has been granted for service-connected coronary artery disease, effective January 21, 2020. As such the rating for the Veteran's coronary artery disease from that date is no longer on appeal. Prior to that date, however, the Veteran still seeks a rating in excess of 10 percent prior to September 20, 2016, and in excess of 30 percent from September 20, 2016, and prior to January 21, 2020. Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, 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. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Coronary artery disease is rated under DC 7005, which provides that a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent rating is warranted where 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 dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where 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. 38 C.F.R. § 4.104, DC 7005 One metabolic equivalent (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. 38 C.F.R. § 4.104, Note (2). After review of the record, the Board concludes that the criteria for a rating in excess of 10 percent was not met or approximated for coronary artery disease pursuant to DC 7005, at any point prior to September 20, 2016. As an initial matter, the Board notes that the 10 percent rating for coronary artery disease is effective from December 1, 2015, as prior to that date a 100 percent rating was granted due to the Veteran's treatment for a heart attack in August 2015. The record prior to September 20, 2016, includes VA treatment records which show that in January 2016, the Veteran was seen for follow up and he denied any symptoms of chest pain or discomfort, shortness of breath, dyspnea on exertion, or palpitation. He took daily medications for his cardiac issues. The Board therefore finds that prior to September 20, 2016, the Veteran's service-connected coronary artery disease required continuous medication, but there was no competent evidence showing that his coronary artery disease manifested a workload of 5 but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, nor was there evidence of cardiac hypertrophy or dilatation. 38 C.F.R. § 4.104, DC 7005. Additionally, the Board concludes that the criteria for a rating in excess of 30 percent have not been met or approximated at any point from September 20, 2016 to January 21, 2020. Specifically, the record includes a September 2016 VA treatment record showing the Veteran reported no chest pain or pressure. A November 2016 Disability Benefits Questionnaire (DBQ) noted that the Veteran's coronary artery disease required continuous medication. An interview-based METs test, based on record review, revealed a maximum workload of greater than 5 METs but not greater than 7 METs, resulting in fatigue. The examiner noted that the METs level estimated was based on the most recent cardiology visit, where it was stated that moderate exertion could be achieved. In July 2017 it was noted that the Veteran was unlikely to benefit from a cardiology evaluation at this time because his symptoms had resolved and he did not seem to have any additional new or concerning symptoms. After review of the record for this period, the Board concludes that the criteria for a rating in excess of 30 percent was not met or approximated at any point from September 20, 2016, or prior to January 21, 2020, as there was no finding of acute CHF, 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 percent to 50 percent, during this period of time. 2.Entitlement to a TDIU, prior to August 25, 2015. As noted above, in the June 2020 rating decision, entitlement to a TDIU was granted effective December 1, 2015, to January 21, 2020. The claim for a TDIU, effective from January 21, 2020, is moot because effective from that date, a 100 percent rating is in effect for the Veteran's service-connected coronary artery disease, and he has been awarded special monthly compensation (SMC) at the (s) rate for this period. Bradley v. Peake, 22 Vet. App. 280 (2008). The Board also notes that the record shows that effective from August 28, 2015, to December 1, 2015, the claim for a TDIU is moot because during that period a 100 percent rating was in effect for coronary artery disease and SMC at the (s) rate was also in effect. Therefore, this decision will focus only on whether entitlement to a TDIU was shown prior to August 25, 2015. When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). In such a situation, the claim for a TDIU has the same appeal period as that of the increased rating claim. When the AOJ grants TDIU for a portion of the appeal period but fails to grant the benefit in full, that portion of the TDIU claim that has been denied remains on appeal. In this case, the appeal period started August 25, 2015, as that was the date of the increased rating claims. The Board will thus consider evidence in the year prior to that date, and the effective date for a TDIU can be no earlier than August 25, 2014. A TDIU may be assigned, where the schedular rating is less than total, where 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(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id. Prior to August 25, 2015, service connection was in effect for bilateral hearing loss, rated 60 percent disabling; posttraumatic stress disorder (PTSD), rated 50 percent; and tinnitus rated 10 percent. The combined rating was 80 percent. Therefore, prior to August 25, 2015, the schedular rating requirements under 38 C.F.R. § 4.16(a) were satisfied. Entitlement to a TDIU is a legal determination, not a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The phrase "unable to secure or follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Board initially notes that the record in the year prior to August 25, 2015, does not provide much information regarding the Veteran's employability. In that regard, VA treatment records show that in February 2015, objective examination showed that the Veteran was well groomed and euthymic. He reported chronic depression and PTSD and preferred the solitude in the basement. Further in February 2015, he reported that his instructional preferences included "doing" and "hearing". In August 2015, the Veteran was hospitalized for chest pain and symptoms of reflux disease, and it was noted that he had heart attack that was "very small". On a psychiatric consultation it was noted he had been given a diagnosis of schizophrenia with symptoms of paranoia, visual and auditory hallucinations, irritability, and behavior issues. On questioning, the Veteran admitted to visual hallucinations, but denied the rest and did not feel he had any major mental issues. He did not want to take psychiatric medications. He reported having PTSD symptoms since Vietnam, including intrusive memories, nightmares, flashbacks and avoidance. It was noted that he had a career at Union Pacific and the Post Office, but was now retired. The assessment was PTSD, possible bipolar illness, unwillingness to take any psychiatric medications, and no suicide risk. Also, in August 2015, it was noted that the Veteran needed psychiatric care as much as he needed cardiac care, given his levels of denial, paranoia, anxiety, and grandiosity/tangential thought. Further, in August 2015, it was noted that he wore hearing aids, and that his communication (speech/hearing) was adequate. After review of the record prior to August 25, 2015, the Board finds that the criteria for a TDIU are not met. Although during that period the Veteran's service-connected disabilities (hearing loss, PTSD, tinnitus) may have impacted his ability to work, the sole fact that a claimant struggles with employability is not enough to substantiate a TDIU claim. As outlined above, the evidence of record during that time does not show that the Veteran's hearing loss, PTSD, and/or tinnitus rendered him unable to secure or follow a substantially gainful occupation. First, for the economic component, the Board notes that he reported he retired after a career at the railroad and the post office. With regard to non-economic components, although he wore hearing aids, his hearing was assessed as adequate and he listed "hearing" as an instructional preference. While the Veteran reported on and off depression and other symptoms related to PTSD, including intrusive memories, nightmares, flashbacks, and avoidance, on an examination in August 2015, he was cooperative, and denied suicidal ideation. It was noted also that he needed psychiatric care given his levels of denial, paranoia, anxiety, and grandiosity/ tangential thought, which were attributed to his non-service-connected schizophrenia, for which he was unwilling to take medication. Accordingly, there is no indication that symptoms attributed to the Veteran's PTSD rendered him unable to service or follow substantially gainful employment. Moreover, it is noted that the combined 80 percent rating that was assigned for the period prior to August 25, 2015, was assigned in recognition that the Veteran did have impairments from his service-connected disabilities, to include occupationally. (Continued on the next page) Accordingly, the Board concludes that the preponderance of the evidence does not show that the Veteran's service-connected disabilities, including hearing loss, PTSD, and tinnitus, were of such nature and severity as to render him unable to secure and follow a substantially gainful occupation prior to August 25, 2015. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.