Citation Nr: 21032778 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-47 433 DATE: May 27, 2021 ORDER Entitlement to an initial compensable rating for service-connected hypertension from May 31, 2007, and in excess of 10 percent from September 23, 2019, is dismissed. Entitlement to an initial rating in excess of 60 percent for service-connected coronary artery disease (CAD) from May 31, 2007, is dismissed. Entitlement to an initial rating in excess of 20 percent for service-connected diabetes mellitus, type II (DM II) from May 31, 2007, is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from May 31, 2007, is granted. FINDINGS OF FACT 1. In February 2021, prior to the promulgation of an appellate decision, the Veteran testified that he wished to withdraw his increased rating claims for hypertension, CAD, and DM II; in a letter, received February 27, 2021, later that month, the Board also received written notification from the Veteran's representative confirming that a withdrawal of the issues of increased ratings for hypertension, CAD, and DM II was requested. 2. Throughout the entirety of the appellate time frame, from May 31, 2007, the schedular criteria for a TDIU have been met and the Veteran's service-connected disabilities are shown to result in an inability to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issues of increased ratings for service-connected hypertension, CAD, and DM II by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.204; 20.205 (2020). 2. From May 31, 2007, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from December 1971 to May 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision and a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In February 2021, the Veteran testified at a video-hearing before the undersigned. A transcript is of record. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Dismissal 1. Entitlement to an initial compensable rating for service-connected hypertension from May 31, 2007, and in excess of 10 percent from September 23, 2019, is dismissed. 2. Entitlement to an initial rating in excess of 60 percent for service-connected coronary artery disease (CAD) from May 31, 2007, is dismissed. 3. Entitlement to an initial rating in excess of 20 percent for service-connected diabetes mellitus, type II (DM II) from May 31, 2007, is dismissed. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204(b)(1). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204(b)(3). A written withdrawal request is effective where it includes (i) the name of the appellant, (ii) the file number, and (iii) a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement (NOD) and, if filed, the substantive appeal. 38 C.F.R. § 20.204(c). There is no obligation to proceed with further adjudication following withdrawal. Hanson v. Brown, 9 Vet. App. 29 (1996). In DeLisio v. Shinseki, the Court provided the requirements for a valid oral withdrawal of an appeal or an issue on appeal done during a hearing. The Court held a valid oral withdrawal must be: (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In the present case, in February 2021, the Veteran testified that he wished to withdraw his increased rating claims for hypertension, CAD, and DM II. The Veteran confirmed he understood the consequences of the withdrawal. His representative specifically noted that it was understood that the Veteran "...would not get a decision on those issues and that if he were to refile in the future, the effective date would be the date of the new filing rather than the date of the current claim." Later that month, in a letter received February 27, 2021, the Board also received written notification from the Veteran and his representative that a withdrawal of the issues of increased ratings for hypertension, CAD, and DM II was requested. The letter contained the Veteran's name and file number, as well. The withdrawal effectively meets the requirements of 38 C.F.R. § 20.204. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of those pending issues is the appropriate disposition. See 38 U.S.C. § 7105(d). Entitlement to a TDIU 4. Entitlement to a TDIU, from May 31, 2007, is granted. In a November 2011 TDIU Application, the Veteran contended that he has been unable to work due to the combination of all his service-connected disabilities since 2002. See November 2011 TDIU Application and February 2021 Hearing Transcript. The Board has construed his TDIU claims, however, as arising from his initial May 31, 2007, claims for service connection and disagreement with those initial ratings and, therefore, the Board will consider entitlement to TDIU from that date. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). 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). From May 31, 2007, to July 10, 2016, the Veteran is service connected for CAD, rated as 60 percent disabling; DM II; rated as 20 percent disabling; and hypertension, rated as noncompensable; for a combined disability rating of 70 percent. The Veteran meets the schedular criteria for a TDIU during this rating period. 38 C.F.R. § 4.16(a). From July 11, 2016, to March 21, 2019, the Veteran is service connected for CAD, rated as 60 percent disabling; DM II; rated as 20 percent disabling; hypertension, rated as noncompensable; erectile dysfunction (ED), rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable; for a combined disability rating of 80 percent. The Veteran meets the schedular criteria for a TDIU during this rating period. 38 C.F.R. § 4.16(a). Incidentally, from March 22, 2019, to April 30, 2019, the Veteran received a temporary total disability rating for his CAD. His other disability ratings were unchanged. From May 1, 2019 to September 22, 2019, the Veteran is service connected for CAD, rated as 60 percent disabling; DM II; rated as 20 percent disabling; hypertension, rated as noncompensable; ED, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and bilateral hearing loss, rated as noncompensable; for a combined disability rating of 80 percent. The Veteran meets the schedular criteria for a TDIU during this rating period. 38 C.F.R. § 4.16(a). From September 23, 2019 to February 16, 2021, the Veteran is service connected for CAD, rated as 60 percent disabling; DM II; rated as 20 percent disabling; hypertension, rated as 10 percent disabling; ED, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as noncompensable; supraventricular arrhythmia, rated as 10 percent disabling; and a scar, rated as noncompensable; for a combined disability rating of 80 percent. The Veteran meets the schedular criteria for a TDIU during this rating period. 38 C.F.R. § 4.16(a). From February 17, 2021, the Veteran is service connected for CAD, rated as 60 percent disabling; DM II; rated as 20 percent disabling; hypertension, rated as 10 percent disabling; ED, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as noncompensable; supraventricular arrhythmia, rated as 10 percent disabling; a scar, rated as noncompensable; and depressive disorder, rated as 90 percent disabling; for a combined disability rating of 90 percent. The Veteran meets the schedular criteria for a TDIU during this rating period. 38 C.F.R. § 4.16(a). In summation, the Veteran met the schedular rating criteria for TDIU since May 31, 2007. The Board notes the Veteran temporarily had a total disability rating from March 22, 2019, to April 30, 2019, but this one-month temporary total rating does not render his overall TDIU claim moot. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The central question is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability," not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). For reasons outlined below, the Board find that a TDIU is warranted because the evidence supports that the Veteran was unable to maintain substantially gainful employment due solely to his service-connected disabilities. On his November 2011 TDIU application, the Veteran indicated that he last worked fulltime in 2002 as a test engineer. He indicated that his CAD, DM II, and hypertension prevented him from working. The Veteran had completed 3 years of college. During his November 2012 Board hearing, the Veteran reiterated that his DM II and CAD prevented him from working. He indicated he completed a 2-year associates degree in electronic technology and last worked in January 2002 as a tech manager in Siemens. He indicated that he would carry heavy equipment and could not return after his open-heart surgery in 2002. He testified that due to his heart condition and diabetes he could not do any work that required him to take stairs, carry anything heavy, was stressful (because stress would increase his heart symptoms), or where he would have to stand for a long time (because of diabetic neuropathy). He further indicated he was awarded Social Security Administration (SSA) disability benefits in 2004 or 2005 because of his heart and diabetes. During his February 2021 hearing, the Veteran testified that he last worked as a technical manager in a telecommunications company. His duties included managing 10 to 12 engineers in the testing of software/hardware operations. At times the Veteran would have to put in heavy equipment (weighing anywhere from 50 to 75 pounds). He worked in that position for about 12 years. The Veteran testified that a combination of his service-connected disabilities prevented him from working. He noted that he believed he never fully recovered from original CAD surgery. Since that surgery, he explained that he experienced symptoms such as chronic angina, shortness of breath, and fatigue. He also would have headache and fatigue from his use of nitroglycerine to treat his CAD. Physically, he noted that he could only walk 100 yards and had difficulty with lifting heavy objects (about 25 pounds). When stressed he would experience angina. Regarding his DM II, he noted that he often had low blood sugar ("twice a week, if not more"), which left him tired. The pertinent inquiry here, then, is whether the Veteran would be capable of suitable work in light of his work history and education notwithstanding the limitations caused by his service-connected disabilities. The Board finds he would not. As outlined below, there is both evidence for and against the Veteran's claim, but the preponderance of the evidence supports the Veteran's testimony that his disabilities, largely his heart condition and diabetes, would preclude substantial gainful employment consistent with his work history and education. The Board's review of VA outpatient treatment records throughout time, for example, largely indicate significant limitations. An August 2007 VA treatment records reflect that the Veteran experienced chest pain whenever he would overexert himself. See October 2007 CAPRI. January 2009 and November 2009 VA treatment records reflect that the Veteran was able to participate in activities such as swimming and walking. It was noted that the Veteran had a hypoglycemic episode in the 1.5 weeks prior. See March 2015 CAPRI. February 2010 VA treatment records reflect that the Veteran stated that he had been having chest discomfort when he would wake up in the morning and when he did any lifting greater than 25 pounds. The pain was present in the middle of the chest and its duration was approximately 3 minutes with a frequency of approximately once a week. The pain was relieved with the use of one nitroglycerin and it took the nitroglycerin less than 30 seconds to relieve the pain. The pattern of the pain had not changed for at least 4 years. It was not accompanied by any diaphoresis, dyspnea, arrhythmia, or presyncopal episode. See March 2015 CAPRI. September 2010 VA treatment records reflect that the Veteran had fewer anginal episodes, which were usually relieved by rest or one nitroglycerin sublingually. He related that since he had started Imdur the episodes had been significantly reduced. Blood pressure and DM II were well controlled. See March 2015 CAPRI. March 2011 VA treatment records reflect that the Veteran had learned to control his episodic chest pain by limiting his activity. See March 2015 CAPRI. VA examinations afforded to the Veteran, on the other hand, have inconsistent findings with regard to the Veteran's functional capacity for work. The Veteran was afforded a VA heart examination in December 2014, which reflects that the Veteran's CAD impacted his ability to work by causing the Veteran to have limited ability for exertional activity. The Veteran was noted to have angina. The Veteran's METs level was estimated to be 3 to 5, consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph). In contrast, the Veteran was afforded a VA DM II examination in December 2014, which reflects that the Veteran's DM II did not impact his ability to work. The Veteran did not require regulation of activities as part of medical management of his DM II. In March 2015, a VA examiner opined that there would be no limitations on sedentary duties due to the Veteran's CAD. The examiner did find that the Veteran would be limited in physical aspects of employment such as heavy-duty labor, lifting heavy objects greater than 5 pounds, running, brisk walking, or other physically demanding efforts. The examiner estimated the Veteran's METs to be 3-5. With regards to the Veteran's DM II, the examiner found that there would be no limitations on the sedentary or physical aspects of employment. An April 2015 heart DBQ report reflects that the Veteran's CAD impacted his ability to work due to it causing the Veteran to have limited exercise capacity. The Veteran was noted to have angina. The Veteran's METs level was estimated to be 3 to 5, consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph). A July 2015 VA treatment record reflects that the Veteran exercised with the Lexiscan protocol for 1.00 minutes and achieved a total of 1.0 METs. EKG abnormalities worsened with Lexiscan administration. The Veteran had chest pain during the test which was relieved by Aminophylline. See April 2016 CAPRI. A February 2016 VA hypertension examination report reflects that the Veteran's hypertension did not impact his ability to work. A May 2017 VA reproductive systems examination report reflects that the Veteran's ED did not impact his ability to work. A May 2017 VA audiological examination report reflects that the Veteran's hearing loss did not impact his ability to work. The Veteran's tinnitus was noted to interfere with his ability to sleep. An October 2019 VA hypertension examination report reflects that the Veteran's hypertension did not impact his ability to work. An October 2019 VA heart examination report reflects that the Veteran was diagnosed with hypertension at age 49 and was sent immediately to the hospital. He had immediate open-heart surgery and had 2 cardiac stents placed in 2005. I n 2012, the Veteran had a cardiac event status-post Turp surgery and was hospitalized for 7 days. In March 2019, he had chest pain and had surgery for 2 additional stents. At the time of the examination, the Veteran complained of chest pain once or twice a week with activities such walking. He also had fatigue and dizziness with standing. The Veteran was noted to have constant supraventricular tachycardia. The Veteran was noted to have dyspnea, fatigue, angina, and dizziness. The Veteran's METs level was estimated to be 3 to 5, consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph). The examiner opined that the Veteran's CAD impacted his ability to work due to the Veteran's symptoms of chest pain, dizziness, and fatigue. In April 2021, the Veteran underwent a VA psychiatric examination. The examiner found that the Veteran's depressive disorder resulted in depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood Occupationally, it was noted that after his service the Veteran initially worked for a textile manufacturing company as a shipping manager for 1 year. He then owned a restaurant with his brother for 5 years while attending college. After that he worked for Bell Labs 5 years as an engineer. Next, he worked for Bell South for 3 years. The Veteran last worked for worked for Stronger-Carlson-Siemmens for 15 years until he quit working in 2002. The examiner found that the Veteran's depressive disorder would result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In April 2021, a private physician opined that from the period of May 31, 2007 to the present, the Veteran's symptoms and limitations from his service-connected CAD, DM II, and hypertension prevented him from performing full time competitive work. It was noted that the Veteran had exercise intolerance, unstable angina, and decreased hearing. Any physical activity would lead to chest pain. The Veteran would not be able to stand/walk continuously in a work setting. The Veteran could only occasionally lift 0 to 5 pounds and no more. The Veteran could only occasionally carry 0 to 5 pounds and no more. The Veteran's symptoms would increase if he were placed in a competitive work environment. The Veteran could not perform a full-time competitive job that required activity on a sustained basis. Pain, fatigue, and other symptoms would frequently interfere with attention and concentration. The Veteran would have to miss work more than 3 times a month as a result of his impairments or treatment. The Veteran would need to avoid all physical activity. The private physician opined that from the period of September 23, 2019 to the present, the Veteran's symptoms and limitations from his service-connected CAD, DM II, hypertension, tinnitus, bilateral hearing loss, supraventricular arrhythmia, and scar prevented him from performing full time competitive work. It was noted that the Veteran had exercise intolerance, unstable angina, and decreased hearing. Any physical activity would lead to chest pain. The Veteran would not be able to stand/walk continuously in a work setting. The Veteran could only occasionally lift 0 to 5 pounds and no more. The Veteran could only occasionally carry 0 to 5 pounds and no more. The Veteran's symptoms would increase if he were placed in a competitive work environment. The Veteran could not perform a full-time competitive job that required activity on a sustained basis. Pain, fatigue, and other symptoms would frequently interfere with attention and concentration. The Veteran would have to miss work more than 3 times a month as a result of his impairments or treatment. The Veteran would need to avoid all physical activity. The record shows that his CAD, coupled with the difficulties from DM II and hypertension, were sufficient to cause his retirement from his job in 2002 as a managing engineer and preclude his ability to find alternative work. Whether he would have been able to find other suitable work is at least in equipoise. That is, considering solely the Veteran's service-connected disabilities, the evidence shows significant physical and mental limitations that any reasonable doubt can and should be resolved in the Veteran's favor. The Veteran has completed technical training with a few years of college education. The majority of his career was spent working as an engineer which in part relied on physical labor to complete. The Board finds that the Veteran would be unable to find a position that was suitable for his education and work experience due to his service-connected disabilities for the reasons explained above. The Board has considered the physical ability-factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. See Ray, 31 Vet. App. 58. The Veteran testified as to his chronic angina, shortness of breath, and fatigue. Regarding his DM II, he noted that he often had low blood sugar (twice a week, if not more), which left him tired. Physically, he noted that he could only walk 100 yards and had difficulty with lifting heavy objects (about 25 pounds). Examiners have also noted the physical effects of the Veteran's service-connected disabilities. VA examiner have consistently found the Veteran's METs to be 3 to 5, consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph). The March 2015 VA examiner found that the Veteran would be limited in physical aspects of employment such as heavy-duty labor, lifting heavy objects greater than 5 pounds, running, brisk walking, or other physically demanding efforts. The April 2021 private examiner found that the Veteran would not be able to stand/walk continuously in a work setting and also noted the Veteran's difficulties in lifting anything greater than 5 pounds. The Veteran's previous employment position required him to lift weights greater than 50 pounds. It follows that the Veteran would be unable to meet the physical requirements of such position. Thus, the Board finds that the Veteran's service-connected physical disabilities impact his ability to be gainfully employed due to difficulties with walking, standing, and lifting. The Board notes that VA examiners have noted that, individually, the Veteran's disabilities would not preclude sedentary employment. In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. In the Veteran's case, his work history consists largely of the testing of software/hardware operations. However, while this work appears to be sedentary, the Veteran was required to move about and lift objects. The private examiner noted that any physical activity would lead to chest pain and that the Veteran would need to avoid all physical activity. As such, the Veteran's skills, training, and work history would preclude such similar sedentary positions. The Board also considered the mental ability-factors noted in Ray, to include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. See Ray, 31 Vet. App. 58. The Veteran testified that when he was stressed, he would experience angina. He also testified that his low blood sugar would leave him fatigued. The Veteran's private examiner noted that the Veteran's symptoms would increase if he were placed in a competitive work environment. The Veteran could not perform a full-time competitive job that required activity on a sustained basis. Pain, fatigue, and other symptoms would frequently interfere with attention and concentration. The Board finds that the Veteran's psychiatric effects of the Veteran's service-connected disabilities impact his ability to be gainfully employed due to difficulties with being able to handle work-place stress and demonstrate reliability and productivity. The Board notes that while no VA examiner has found that a single service connected disability prevents the Veteran from obtaining and maintaining substantially gainful work, no VA examiner has also considered the combination of the Veteran's service-connected disabilities in relation to the Veteran's ability to obtain and maintain substantially gainful work. Conversely, the April 2021 private examiner provided a detailed opinion in which he concluded that since May 31, 2007, the Veteran's symptoms and limitations from his service-connected CAD, DM II, and hypertension prevented him from performing full time competitive work. In light of the Veteran's past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran is not capable of substantially gainful work. Accordingly, entitlement to a TDIU from May 31, 2007, is warranted. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Gandhi, 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.