Citation Nr: 21040324 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-49 943A DATE: July 3, 2021 ORDER Entitlement to an initial disability rating of 60 percent, but no higher, for coronary artery disease (CAD) prior to April 13, 2012 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating in excess of 60 percent disabling for CAD since April 13, 2012 is denied. Entitlement to an initial disability rating of 70 percent, but no higher, for post-traumatic stress disorder (PTSD) prior to August 19, 2014 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial rating in excess of 70 percent disabling for PTSD since August 19, 2014 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) since August 31, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Metabolic equivalent (MET) testing shows the Veteran develops dyspnea, fatigue, angina, dizziness, and syncope at a workload of 3 - 5 METs. Probative MET testing shows the Veteran did not develop these symptoms at a workload of 3 METs or less, and the evidence did not show chronic congestive heart failure or left ventricular dysfunction with an ejection fraction of less than 30 percent for the entire period on appeal. 2. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate total occupational and social impairment for the entire period on appeal. 3. The Veteran's service-connected disabilities prevented him from securing or following substantially gainful employment for the entire period on appeal. CONCLUSIONS OF LAW 1. Prior to April 13, 2012, the criteria for a rating of 60 percent disabling, but no higher, for arteriosclerotic heart disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 2. Since April 13, 2012, the criteria for a rating in excess of 60 percent disabling for arteriosclerotic heart disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7005. 3. Prior to August 19, 2014, the criteria for a 70 percent disability rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 4. Since August 19, 2014, the criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 5. Since August 31, 2010, the criteria for a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1970 to March 1972, including service in the Republic of Vietnam. The Board observes that while the issue of TDIU was on appeal, the Agency of Original Jurisdiction (AOJ) granted TDIU in a May 2019 rating decision, effective January 29, 2019. As TDIU was part and parcel to the initial increased rating claims, the period on appeal for TDIU is the same as for the initial increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the issue of TDIU remains before the Board and is granted in full below. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition, while the issue of TDIU was in remand status, the Veteran filed an appeal of the assigned effective date assigned in the May 2019 rating decision under the Appeals Modernization Act (AMA). However, as the relief sought is granted herein, the AMA appeal will be dismissed separately. The Board also notes that the Veteran's claims of entitlement to an earlier effective date for the grant of increased disability ratings for his CAD and PTSD in the Notice of Disagreement (NOD) are, in fact, claims for higher ratings prior to a certain date. Thus, the claims for an earlier effective date are encompassed by the appealed issues of entitlement to increased evaluations during the same appeal period, and the Board has characterized the issues as they are listed above. In this case, the Board has determined that a higher rating is warranted for each issue from the date of service connection and there is no prejudice to the Veteran. Increased Rating 1. Entitlement to an initial disability rating of 60 percent, but no higher, for coronary artery disease (CAD) prior to April 13, 2012 is granted, subject to the laws and regulations governing the payment of monetary benefits 2. Entitlement to an initial disability rating in excess of 60 percent disabling for CAD since April 13, 2012 is denied The Veteran seeks a higher rating for his service-connected CAD than the currently assigned initial rating of 30 percent effective August 31, 2010 and the 60 percent rating assigned effective April 13, 2012. As shown below, the Board finds that a 60 percent disability rating, but no higher, is warranted for the entire period on appeal. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 ; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 ; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 . See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected CAD is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7005. Under Diagnostic Code 7005, a 10 percent rating is warranted for arteriosclerotic heart disease (coronary artery disease) with a documented history of coronary artery disease where a workload of greater than 7 METS but not greater than 10 MET's results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent evaluation is assigned for workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent evaluation is warranted where there is more than one episode of acute congestive heart failure in the past year; or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent evaluation is warranted with chronic congestive heart failure; or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. One MET is defined as 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 MET's at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in MET's 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. The Board further finds that the preponderance of the competent medical and other evidence of record does not reflect during the pendency of this case the Veteran's service-connected CAD has been manifested by congestive heart failure; a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. The Board notes that the Veteran has had several private and VA examinations. The January 2011 private examination reports symptoms of angina, shortness of breath, dizziness, syncope attacks and fatigue with METs level greater than 5 but not greater than 7; the echocardiogram report showed left ventricular systolic function as 55-60 percent. The April 2012 private DBQ found that a workload of greater than 3 METs but not greater than 5 METs, resulted in dyspnea, fatigue and angina. The April 2019 VA Heart Conditions examination reported dyspnea at 1 to 3 METs. The Board notes that the Veteran was experiencing a hypertensive emergency and was sent to the emergency department before the ECHO examination could be completed. The September 2019 VA DBQ found a workload of 3 to 5 METS and noted that the Veteran could not attribute physical activity symptoms solely to his cardiac condition. The left ventricular ejection fraction was reported as 55 percent or greater in each examination. As seen above, the Veteran's METs levels varied throughout the period on appeal, however, the most consistent readings as reported in April 2012 and in September 2019 examinations were 3 to 5 METs, which corresponds to a 60 percent disability rating for the entire period on appeal. The Board observes a METs level of 1 to 3 reported in the April 2019 examination, but as the Veteran was experiencing a hypertensive emergency, and the examination in September of that same year showed 3 to 5 METs, the Board finds that the 1 to 3 METs report represents an anomaly in the Veteran's cardiac symptomology. Therefore, the preponderance of the evidence shows that an initial rating of 60 percent is warranted for the entire period on appeal and staged ratings are not for application. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 3. Entitlement to an initial disability rating of 70 percent, but no higher, for post-traumatic stress disorder (PTSD) prior to August 19, 2014 is granted, subject to the laws and regulations governing the payment of monetary benefits. 4. Entitlement to an initial rating in excess of 70 percent disabling for PTSD since August 19, 2014 is denied. The Veteran seeks a higher rating than the currently assigned initial rating of 30 percent disabling effective November 1, 2010 and the 70 percent disability rating effective August 19, 2014. The Board finds that a 70 percent rating for the Veteran's PTSD symptomology for the entire period on appeal is warranted. The Veteran's psychiatric disorder is currently rated under 38 C.F.R. § 4.130 , Diagnostic Code 9411 According to 38 C.F.R. § 4.126(a), a mental disorder shall be rated "based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." 38 C.F.R. § 4.126(a). Under Diagnostic Code 9411, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships A 70 percent rating is warranted for is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted if evidence shows total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). The Board finds that throughout the appeal the Veteran's service-connected psychiatric disorder has been productive of occupational and social impairment in most areas due, at least in part, to his violent behavior. Despite the February 2011 VA examiner's opinion that the Veteran's psychiatric disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the Board finds that the duration, frequency, and severity of the Veteran's symptoms, chiefly his history of violent behavior, are suggestive of occupational and social impairment with deficiencies in most areas. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) Throughout the appeal, the Veteran's symptoms have been reported as: trouble concentrating due to impaired focus and attention, anxiety, depressed mood, chronic sleep impairment, flattened affect, irritability, panic attacks lowered motivation, impaired impulse control such as unprovoked irritability with periods of violence, homicidal ideations, mild memory loss, difficulty in adapting to stressful circumstances, and difficulty in establishing and maintaining effective work and social relationships. See February 2011 August 2014, May 2019, and September 2019 examinations. For these reasons, the Board finds that an initial 70 percent rating is warranted for the Veterans service-connected PTSD for the entire period on appeal, effective November 1, 2010. However, the Board finds that the Veteran's psychiatric symptomology does not show both total occupational and social impairment and a 100 percent rating is not warranted. In this case the Veteran's symptoms have not manifested as gross impairment in thought processes or communication; persistent delusions or hallucinations; or grossly inappropriate behavior. Although the Veteran has had a violent history, the evidence does not show that he is in persistent danger of hurting others. He has the ability to perform activities of daily living (including maintenance of minimal personal hygiene); he was oriented to time and place in each examination; and although he has mild memory loss, the medical evidence does not show memory loss for names of close relatives, his own occupation, or his own name. Accordingly, the Board finds that a 70 percent disability rating for the entire period on appeal, but no higher, is warranted. 5. For the entire period on appeal, a total disability rating based on individual unemployability is granted, subject to the laws and regulations governing the payment of monetary benefits The Veteran asserts that the combination of his service-connected disabilities prevent him from working. The Board agrees. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation 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 the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). To meet the requirement of one 60 percent disability or one 40 percent disability, the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual's particular circumstance. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners' conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran's ability to obtain and maintain employment consistent with his or her education and experience. The combined rating for the Veteran's service-connected disabilities is 90 percent: 70 percent disabled for PTSD, 60 percent disabled for CAD, and a noncompensable rating for abdominal aortic aneurysm. As such, the Veteran meets the schedular requirements for TDIU. 38 C.F.R. § 4.16. The Board finds that the probative evidence of record shows that the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The file shows that his previous occupation was working in building maintenance from November 1999 to February 2009, which his service-connected disabilities prevented him from following. He has been unemployed since then and in receipt of Social Security Disability benefits since September 2009. Of note, a Vocational Consultant reviewed the entirety of Veteran's file. He opined that a TDIU was warranted as the combination of the Veteran's physical and emotional conditions interact, causing the Veteran to be extremely limited in maintaining substantially gainful employment. The Board finds this review, analysis, and opinion highly probative as it was conducted by a Certified Vocational Evaluator and included a persuasive rationale to support its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (Continued on the next page) Based on the foregoing, the Board finds that the combination of this Veteran's service-connected disabilities prevents him from securing or following a substantially gainful occupation. Thus, the Board finds that a schedular TDIU is warranted for the entire period of the appeal, from August 31, 2010. 38 C.F.R. §§ 3.340, 3.341, 4.16. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Nelson 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.