Citation Nr: 21032666 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-02 275 DATE: May 27, 2021 ORDER Entitlement to an initial evaluation for CAD in excess of 10 percent from February 15, 2012 is denied. Entitlement to an increased evaluation for CAD in excess of 30 percent from February 1, 2016 to December 9, 2019 is denied. Entitlement to an increased evaluation for CAD in excess of 60 percent from December 9, 2019 is denied. REMANDED Entitlement to a total disability rating due to individual unemployability from February 15, 2012 to January 23, 2020 is remanded. FINDINGS OF FACT 1. For the period prior to February 1, 2016, the Veteran's CAD is not manifested by dyspnea, fatigue, angina, dizziness, or syncope as a result of 5 to 7 METs and there is no evidence of cardiac hypertrophy or dilation. 2. For the period of February 1, 2016 to December 7, 2019, the Veteran's CAD is not manifested by congestive heart failure, a workload of 5 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 3. For the period following December 8, 2019, the Veteran's CAD is not manifested by a workload of 3 METs or less, left ventricular dysfunction with an ejection fraction of 30 percent or less, or chronic congestive heart failure. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation for CAD in excess of 10 percent from February 15, 2012 to January 31, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7005. 2. The criteria for entitlement to an increased evaluation for CAD in excess of 30 percent from February 1, 2016 to December 7, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7005. 3. The criteria for entitlement to an increased evaluation for CAD in excess of 60 percent for the period following December 8, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1967 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, that granted service connection for the heart disability. The Veteran appealed the initial rating. In February 2019, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's remand directed the RO to obtain outstanding VA treatment records from January 2012 to present. Pertinent records were associated with the file on April 2021. The RO was also instructed to obtain the Veteran's private treatment records from various facilities, which were obtained in November 2019. The RO was to provide the Veteran with an examination to determine the current severity of his coronary artery disease (CAD). An in-person VA examination was provided in December 2019, with additional opinions obtained in March and May 2020, and April 2021. As such, substantial compliance with the remand directives has been achieved. Id. at 271. Although the Veteran has submitted subsequent applications for an increased rating of his CAD disability, his January 2015 appeal remains pending, and therefore, remains in the VA's legacy system. The Veteran also submitted an August 2020 application for a total disability rating based on individual unemployability (TDIU) related to his CAD disability. In an April 2021 rating decision, the claim was denied and the issue remains under appeal in the AMA system. However, as the Veteran raised the TDIU claim in the context of his heart disability, the Board also retains jurisdiction of the TDIU claim in the current legacy appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for an increased rating includes a claim for TDIU where there are allegations of worsening disability and related unemployability). Additionally, the Veteran was granted a 100 percent rating for right posterior deltoid sarcoma, effective January 23, 2020. As such, the issue of TDIU is rendered moot for the period following January 23, 2020, the appeal period for TDIU runs from February 15, 2012 to January 2020. Increased Evaluations Disability ratings are determined by applying a schedule of ratings that 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. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. In this case, staged ratings are in effect. Specifically, from the grant of service connection in February 2012, the Veteran is in receipt of a 10 percent rating. During the course of the appeal, two additional stages were created. A 30 percent is in effect from February 1, 2016, and a 60 percent rating is in effect from December 9, 2019. Arteriosclerotic heart disease is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005, for arteriosclerotic heart disease (coronary artery disease or CAD). Under DC 7005, 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 when continuous medication is 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 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 warranted 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. 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). 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. Id. 1. Entitlement to an initial evaluation for CAD in excess of 10 percent from February 15, 2012 to February 1, 2016. The Veteran contends that he is entitled to a higher initial rating for CAD based on his symptoms of dyspnea, fatigue, and dizziness. The Veteran was granted a 10 percent rating with an effective date of February 15, 2012. As he was granted a 30 percent rating effective February 1, 2016, the question for the Board is whether the Veteran's CAD symptoms resulted in a level of impairment associated with a disability rating in excess of 10 percent for this initial period. The Veteran was afforded a VA examination in February 2014. He reported a 2007 coronary bypass surgery and the use of daily medication to treat his condition. The examiner noted the Veteran's last stress test in November 2013 showed a workload of 12.8 METs. He complained of moderate dyspnea and fatigue but no chest pain. Electrocardiograms (EKG) and chest X-rays were also obtained with no evidence of cardiac hypertrophy, dilatation, active pulmonary disease, or cardiomegaly. At his VA treatment in January and July 2013, the Veteran denied chest pain, or angina, however, private treatment records from July 2013 show complaints of chest pain not associated with exertion. At his January 2014 VA check-up, the Veteran reported no exertional chest pain and treatment notes indicate good cardiac health following his surgery. The Veteran was given an echocardiogram (Echo) stress test in December 2015. The Veteran complained of moderate shortness of breath. However, EKG testing showed normal sinus rhythm, no ischemic changes, and no stress arrhythmias. His left ventricular ejection fraction (LVEF) was estimated to be 60 to 65 percent. A review of the remaining private and VA treatment records show that the Veteran receives regular treatment for his CAD. However, there is no indication that the Veteran's symptomatology is manifestly different from the findings discussed above. Considering all relevant evidence of record, the Board finds the Veteran's arteriosclerotic heart disease results in a MET of 12.8 and requires the continuous use of medication during this first staged rating period. These findings correspond to the criteria for a 10 percent rating under DC 7005. A higher 30 percent rating under DC 7005 is not warranted unless METs testing shows the Veteran develops dyspnea, fatigue, angina, dizziness, or syncope at a workload greater than 5 METs but not greater than 7 METs. The Veteran's METs level at which symptoms appeared was greater than 7 METs level during this period. Additionally, diagnostic testing reveals no cardiac hypertrophy or dilation on electrocardiogram (EKG), echocardiogram (ECHO), or X-ray throughout this period. The Veteran's use of continuous medication is contemplated by a rating of 10 percent. Thus, the Board concludes that the Veteran's arteriosclerotic heart disease did not meet the criteria corresponding to a higher 30 percent rating, or any rating above that level, which contemplates more severe METs levels. Although the Veteran is competent to report his readily observable symptoms, the Board finds that the lay evidence does not establish a greater degree of functional impairment than that contemplated by the currently assigned disability ratings. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The cumulative medical evidence and findings of VA examiners are given significant probative value and weight. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an increased rating for CAD is not warranted prior to February 1, 2016. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an increased evaluation for CAD in excess of 30 percent from February 1, 2016 to December 8, 2019. The Veteran was granted a 30 percent evaluation for his disability for the period following February 1, 2016. He was subsequently granted a rating of 60 percent effective December 9, 2019. Therefore, the question for the Board is whether the evidence demonstrates a rating in excess of 30 percent is warranted from February 1, 2016 to December 8, 2019. The Veteran was afforded a VA examination in February 2016. Diagnoses of atherosclerotic cardiovascular disease and coronary artery bypass graft, as well as continuous use of medication, is noted. The Veteran reported symptoms of dyspnea, fatigue, and angina with an increase in shortness of breath with activity. It was noted that he had recent pulmonary function tests that were normal but that his December 2015 ECHO stress-test was stopped due to shortness of breath. Upon physical examination, the Veteran's heart rhythm was noted as regular and his heart sounds as normal. In an interview-based assessment, the examiner estimated a METs workload greater than 5 but less than 7 as being more accurate than the exercise-based stress test. Additionally, VA treatment from January 2016 note the Veteran experienced intermittent dyspnea with no angina and February 2017 records indicate he reported to cardiology with an increase in dyspnea but was told it was likely not cardiac. Private treatment records contain several cardiology check-ups in 2017, indicating an overall stable condition. Physical exams in January, February, March, and September reveal normal breath sounds with no respiratory effort and the Veteran denied shortness of breath and chest pain. EKG results taken show abnormalities, resulting in a diagnosis of bradycardia. A stress test was performed in December 2017, resulting in a METs score of 10. Although the stress test was terminated due to fatigue, an EKG taken shows a very good functional capacity of 74 percent maximum predicted heart rate (MPHR) with no evidence of ischemia. Sinus bradycardia was noted at rest and the Veteran reported dyspnea and throat tightness; however he was noted as having an exercise capacity above average. In July 2018, the Veteran's cardiology evaluation showed "very good results" from routine check-ups. September 2018 treatment reveals no chest pain, no fatigue, no shortness of breath, no dyspnea on exertion, and no syncope. Considering all relevant evidence of record, the Board finds an evaluation in excess of 30 percent is not warranted. The evidence does not show the Veteran experienced more than one episode of acute congestive heart failure during this period. The Veteran's symptoms of dyspnea, fatigue, angina, dizziness, and syncope occurred at a METs workload greater than 5 and a left ventricular dysfunction ejection fraction of 30 to 50 percent was not found. These findings correspond to the criteria for a 30 percent rating under DC 7005. Accordingly, the Board concludes that the Veteran's arteriosclerotic heart disease did not meet the criteria corresponding to a 60 percent rating or higher. The Veteran is competent to report his readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he is not competent to determine the severity of his condition as it requires specialized knowledge of the cardiovascular system and training in complex diagnostic procedures. As such, the probative medical evidence is afforded significant weight. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an increased rating for CAD is not warranted from February 1, 2016 to December 9, 2019. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to an increased evaluation for CAD in excess of 60 percent from December 9, 2019 and thereafter. The Veteran was granted a 60 percent evaluation for CAD effective December 9, 2019. He contends his disability symptoms following that date warrant a higher evaluation. Therefore, the question for the Board is whether the evidence demonstrates a rating in excess of 60 percent is warranted after December 9, 2019. The Veteran was provided an in-person VA examination in December 2019 to assess the severity of his disability with subsequent addendum opinions submitted. Physical evaluation revealed normal heart rate, heart sounds, and pulses and the Veteran reported his symptoms remained unchanged since his last examination. The examiner explained the Veteran has percutaneous transluminal coronary angioplasty (PTCA) and sinus bradycardia, which are considered complications of his CAD. As such, in April 2021, the RO noted a change in the Veteran's diagnosis to include CAD, status post coronary bypass surgery and percutaneous transluminal coronary angioplasty. See 38 C.F.R. § 4.13. A VA physician was asked to opine as to whether the Veteran's private treatment records from November 2015 showed possible left ventricular hypertrophy (LVH) on diagnostic testing. In March 2020, the examiner concluded evidence-based medical literature indicates EKG testing is an imperfect tool for detecting LVH. While useful, due to the limitations, "LVH is most reliably identified on imaging with either echocardiography [ECHO] or cardiac magnetic resonance imaging." The examiner indicated a review of medical records for any objective evidence of ECHO and/or cardiac magnetic resonance imaging to support a diagnosis of cardiac hypertrophy or dilatation, however none was found. The examiner noted a December 2015 ECHO rest test revealed normal results and concluded the record did not contain evidence of cardiac hypertrophy or dilation. The December 2019 VA examiner was asked to provide an addendum opinion to include review of recently submitted private treatment records. In May 2020, a transthoracic echocardiogram was performed to determine the severity of the Veteran's CAD. Results for left ventricle systolic function was reported as normal with normal size and thickness, and the Veteran's LVEF was indicated to be 60 to 65 percent. Following diagnostic testing, the examiner indicated the Veteran showed borderline LVH and dilation in 2010 which was shown to have resolved in the recent ECHO testing. Additionally, the examiner notes the Veteran's 2015 stress ECHO did not show evidence of LVH and this is supported by the May 2020 ECHO. The examiner indicated the Veteran is limited by 3 to 5 METs which is consistent with light yard work, mowing lawn, and brisk walking. The Board concludes that the Veteran's arteriosclerotic heart disease is not manifested by LVEF of 30 percent or less, MET level is not or the evidence shows left ventricular dysfunction with an ejection fraction ranging from 30 to 50 percent throughout the appeal period. These findings correspond to the criteria for a 60 percent rating under DC 7005. The medical evidence does not show chronic congestive heart failure at any point during the appeal period. Records reveal a workload of 3 to 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. As evidenced by the May 2020 ECHO testing, the Veteran's LVEF was found to be 60 to 65 percent. Thus, the Board concludes that the Veteran's arteriosclerotic heart disease did not meet the criteria corresponding to a higher 100 percent rating. The Veteran reported flareups four times a week lasting one minute that can be triggered by brisk walking and laughing and experiences dyspnea and fatigue and is physically limited during these flareups. The Veteran is competent to report his readily observable symptoms, however he is not shown to be competent to provide a medical opinion on his condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Opinions of the VA examiners and the probative VA and private treatment record are given significant probative value and weight. As there is no contrary medical evidence favoring a total disability rating for CAD, the preponderance of the evidence is against an evaluation in excess of 60 percent. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an increased rating for CAD is not warranted after December 9, 2019. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REMANDED 4. Entitlement to a total disability rating due to individual unemployability from February 15, 2012 to January 23, 2020 is remanded The Veteran contends he is entitled to a total disability rating due to unemployability as a result of his service-connected CAD. Specifically, he asserts he retired from his position as a mail clerk due to the need for multiple open-heart surgeries, the last of which occurred in 2009. Although the Veteran contends he has not worked since that time, as stated above, period of appeal for the issue of TDIU runs from February 15, 2012 to January 23, 2020. 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, if there is only one such disability, the disability shall be rated at 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more and sufficient additional disability ratings to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) Disabilities resulting from common etiology or a single accident; (3) Disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) Multiple injuries incurred in action; or (5) Multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a) prior to December 9, 2019. During this period, the Veteran was service-connected for CAD with staged ratings as discussed in previous sections: 10 percent from February 2012, 30 percent from February 2016, and 60 percent from December 2019; and erythremia at 10 percent from January 1970. He also received noncompensable ratings for scar, status post coronary surgery effective February 2014 and bilateral hearing loss effective November 2019. Notwithstanding the Veteran is service-connected for several disabilities, he did not receive a rating of 40 percent or more for a single disability until December 9, 2019, the effective date of his 60 percent evaluation of CAD. Arguably the Veteran's erythremia and CAD may be considered one disability as they each affect a single body system, i.e. the cardiovascular system, and originate from conceded herbicide exposure. See Moody v. Wilkie, 30 Vet. App. 329, 339 (2018). However, even considering the two conditions as one disability, the combined rating does not meet the threshold requirement of 60 percent, and therefore schedular consideration is not appropriate. The extra-schedular TDIU provisions make clear that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. However, the Board cannot make this determination on the first instance, and these claims must be remanded to the Regional Office (RO) for a referral. See 38 C.F.R. § 4.16(b), and see also Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001) (holding that the Board could not award TDIU on an extra-schedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration). As described in Ray v. Wilkie, the correct standard for referral is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). The Veteran contends he retired from his employment as a mail clerk at the United States Postal Service (USPS) due to several heart surgeries and resulting limitations from his CAD disability. USPS confirmed the Veteran's employment as from May 1974 until his retirement in June 2009. In an April 2021 statement, the Veteran indicated he left his employment in 2006 for "open heart surgery." He returned to his position but was again required to have heart surgery in 2009, and in anticipation of that surgery, he retired in 2008. Treatment records show the Veteran's physician advised that he would be unable to perform his previous duties following his second heart surgery. Additionally, during the appeal period, VA examiners opined the Veteran's CAD resulted in functional limitations and impacted his ability to work. As such, the evidence reasonably raises the possibility the Veteran's service-connected CAD disability prior to January 23, 2020 has rendered him unemployable. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). As the Veteran does not meet the schedular criteria prior to December 9, 2019 and is rated at 100 percent for his CAD disability effective January 23, 2020, the Board finds it appropriate to refer the entire appeal period to the Director of Compensation Service. Accordingly, entitlement to a TDIU prior to January 23, 2020 is REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records related to the Veteran's CAD disability. 2. Submit the issue of entitlement to TDIU, on an extraschedular basis, to the Director of Compensation Service. All of the Veteran's service-connected disabilities should be considered. Also, the Veteran's employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered under 38 C.F.R. § 4.16 (b). Of particular note, the Director is asked to consider the reason for the Veteran's retirement from the postal service, which was multiple heart surgeries. 3. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the claim for entitlement to TDIU on an extraschedular basis. If the benefit sought is not granted, the AOJ must then issue a Supplemental Statement of the Case ("SSOC") and allow the Veteran and his representative an opportunity to respond. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.