Citation Nr: 22011966 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-01 925 DATE: March 2, 2022 ORDER A disability rating in excess of 60 percent for ischemic heart disease (IHD) is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to November 10, 2021, and in excess of 20 percent thereafter, for limitation of right elbow supination is remanded. Entitlement to an initial compensable rating for limitation of right elbow extension with traumatic arthritis is remanded. Entitlement to a rating in excess of 20 percent prior to October 23, 2019, and in excess of 30 percent thereafter, for degenerative joint disease of the right elbow is remanded Entitlement to a rating in excess of 10 percent prior to November 10, 2021, and in excess of 20 percent thereafter, for limitation of left elbow supination is remanded. Entitlement to a compensable rating prior to November 10, 2021, and in excess of 10 percent disabling thereafter, for limitation of left elbow extension is remanded. Entitlement to a rating in excess of 20 percent for degenerative joint disease of the left elbow is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 is remanded. FINDING OF FACT The Veteran's IHD has not been shown to result in chronic congestive heart failure; a workload of 3 metabolic equivalents (METs) or less resulting in dyspnea, fatigue, angina, dizziness, syncope, or other symptoms of heart failure; or left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for IHD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005-7017. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorably active service from March 1966 to December 1969. The Board of Veterans' Appeals (Board) remanded these matters in March 2019 and again in July 2021. In June 2020, during the pendency of the appeal, the Regional Office (RO) issued a rating decision granting an increased 30 percent rating for degenerative joint disease of the right elbow, effective October 23, 2019. In a November 2021 rating decision, the RO granted partial increased ratings for right and left elbow supination and left elbow extension. However, because these actions did not constitute full grants of the benefits sought, the claims for increased ratings remain before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Relevant to this appeal, a claim for increased disability compensation may include the inferred issue of entitlement to SMC. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). In this case, the Veteran's attorney raised the issue of entitlement to SMC under 38 U.S.C. § 1114(s) in correspondence accompanying the Veteran's January 2017 notice of disagreement. The issue of entitlement to SMC will thus be incorporated into the appeal. Increased Rating 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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. Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. IHD The Veteran asserted that his IHD with coronary bypass surgery was more severe than the current rating reflected. The Veteran's symptoms are rated as 60 percent disabling under DC 7005-7017. 38 C.F.R. § 4.104. Effective November 14, 2021, VA amended the rating criteria for rating heart disorders. Prior to November 14, 2021, DC 7017 provides that a 100 rating is warranted for three months following hospital admission for coronary bypass surgery. Thereafter, ratings from 10 to 100 percent are assigned based on the severity of cardiopulmonary symptoms. A 60 percent rating is assigned for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, DC 7017. A 100 percent rating is assigned for chronic congestive heart failure, or; 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. Id. (The same criteria apply under DC 7005, which governs arteriosclerotic heart disease or coronary artery disease.) Effective November 14, 2021, DC 7017 directs VA to rate coronary bypass surgery residuals under a General Rating Formula for Diseases of the Heart. The General Rating Formula provides that a 60 percent rating is warranted where a workload of 3.1-5.0 METs results in heart failure symptoms. A 100 percent rating is warranted where a workload of 3.0 METs or less results in heart failure symptoms. The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). As it pertains to veterans law, in Kuzma v. Principi, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Accordingly, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran, the revised criteria may not be applied until the effective date of the change. See 38 U.S.C. § 5110(g). In other words, prior to November 14, 2021, only the old rating criteria may be considered, but from November 14, 2021, both the old and new criteria may be considered, and the criteria that is more favorable to the Veteran will be applied. With regard to both the old and new rating criteria, one 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. 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. 38 C.F.R. § 4.104, Note (2). For purposes of the General Rating Formula for Diseases of the Heart, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. 38 C.F.R. § 4.104, Note (3). After careful review, the criteria for a rating in excess of 60 percent have not been met at any point during the appeal period. This appeal dates from the Veteran's November 2015 claim for increase. (A 60 percent rating is in effect from April 15, 2013.) At that time, the Veteran submitted private records reflecting that he was seen in June 2015 with complaints of chest pain. An echocardiogram revealed aortic stenosis with left ventricular ejection fraction between 55 and 60 percent. In February 2016, the Veteran was afforded a VA Compensation and Pension (C&P) examination. The examiner indicated that the Veteran did not have a history of myocardial infarction, congestive heart failure, or cardiac arrhythmia, but did have mild aortic stenosis. There was no evidence of infectious heart conditions or pericardial adhesions. Prior procedures included angioplasties performed in March 2013 and November 2015 and bypass surgery in October 2005. On physical examination, the Veteran's heart rate was 60 with regular rhythm. Heart sounds were abnormal, however, with a harsh systolic murmur. There was no jugular-venous distension and auscultation of the lungs was clear. Peripheral pulses were diminished. There was no sign of peripheral edema. There was no indication of cardiac hypertrophy or dilatation. METs testing (based on a February 2015 interview) revealed a workload of between 3 and 5 METs, with symptoms of fatigue and angina present. With respect to functional impairment, the examiner noted that the Veteran would only be able to do sedentary work. In October 2019, the Veteran was afforded a VA C&P examination of the arteries and veins. The Veteran reported dyspnea on exertion and occasional chest pain, palpitations, and dizziness. No significant arterial or venous conditions were noted. An EKG was done that revealed normal sinus rhythm and an ejection fraction of 55 percent. Interview-based METs testing showed a workload of between 3 and 5 METs able to be completed before stopping for angina, fatigue, and dyspnea. No further functional impairment was noted. The examiner noted that while measuring his blood pressure the Veteran began complaining of mild midsternal chest discomfort, dizziness, shortness of breath, and headache. The examiner recommended that the Veteran call 911 or go to the closest emergency room. However, within about five minutes and after calling the Veteran's private cardiologist, his symptoms rapidly improved. The examiner was able to do a physical examination that revealed no acute abnormalities; the Veteran's chest was clear to auscultation and his heart rate was normal. There was a 2-3/6 systolic ejection murmur consistent with aortic stenosis. No abdominal pain to palpation was noted and there was no indication of edema. The examiner reiterated that it was in the Veteran's best interest to go to the ER, but he declined. In May 2020, a VA nurse practitioner completed a heart evaluation based on a review of the Veteran's records. The report was negative for any history of myocardial infarction, congestive heart failure, cardiac arrhythmia, infectious cardiac conditions, or pericardial adhesions. On physical examination, the Veteran's heart rate was 80 with regular rhythm. Heart sounds were normal. There was no jugular-venous distension and auscultation of the lungs was clear. Peripheral pulses were normal, and there was no sign of peripheral edema. There was evidence of cardiac hypertrophy, as per a 2015 echocardiogram, but no evidence of dilatation; the 2015 echocardiogram showed a left ventricular ejection fraction of 55 percent. METs testing (based on a May 2020 interview) revealed a workload of between 3 and 5 METs, with a higher estimate provided when considering solely the Veteran's cardiac condition. (The examiner noted that the Veteran's left ventricular ejection fraction was the most objective reflection of his current cardiac status.) The examiner noted that the Veteran's heart condition did not impact his ability to work. In July 2021, the Board remanded the claim in order to obtain outstanding private treatment records from the Veteran's cardiologist. These have since been obtained and reviewed by the Board, and are largely consistent with the C&P reports discussed herein. Most notably, the records do not contain any evidence of chronic congestive heart failure, left ventricular ejection fraction of 30 percent or less, or a workload of 3 METs or less resulting in symptoms of heart failure. The Board also requested an additional VA examination, which was performed in November 2021. The report was negative for any history of myocardial infarction, congestive heart failure, cardiac arrhythmia, infectious cardiac conditions, or pericardial adhesions. There was evidence of mild regurgitation of the mitral valve and moderate to severe aortic stenosis. On physical examination, the Veteran's heart rate was 68 with regular rhythm. Heart sounds were normal. There was no jugular-venous distension and auscultation of the lungs was clear. Peripheral pulses were normal, and there was no sign of peripheral edema. There was no evidence of cardiac hypertrophy or dilatation. METs testing (based on a November 2021 interview) revealed a workload of between 3 and 5 METs followed by symptoms of breathlessness, fatigue, angina, and dizziness. A 2021 echocardiogram revealed left ventricular ejection fraction of 50 percent. The examiner noted that the Veteran's heart condition would cause him difficulty with mild to moderate activity. After careful review, the Veteran's IHD with coronary bypass surgery has not been persuasively shown to limit his workload to 3 METs or less resulting in symptoms of heart failure, nor is there any indication of a history of chronic congestive heart failure. Moreover, based on the echocardiogram findings of record, there is no evidence that the Veteran's left ventricular ejection fraction has been measured at 30 percent or less. Indeed, the Veteran's left ventricular ejection fraction has been predominantly 50 percent or above throughout the appeal period, including at his most recent C&P examination. Thus, the criteria for a rating in excess of 60 percent under the old criteria have not been met. See 38 C.F.R. § 4.104, DC 7017. Under the amended criteria in effect from November 14, 2021, a 100 percent rating would be warranted where a workload of 3.0 METs or less results in heart failure symptoms. As noted above, the most recent C&P examination showed that the Veteran was able to achieve a workload of greater than 3 METs before experiencing symptoms consistent with heart failure. The Veteran has not contested the findings of the November 2021 C&P report. There is no persuasive evidence that he experienced symptoms more nearly approximating the criteria for a 100 percent rating under the amended General Ratings Criteria. The C&P reports reflect, in addition to the Veteran's service-connected diagnosis, diagnoses of mitral regurgitation and aortic stenosis. The Board has considered the symptoms produced by all cardiopulmonary disorders, regardless of diagnosis. Moreover, the C&P reports of record measured cardiopulmonary function without regard to any specific diagnoses. There is no basis in the record to suspect that mitral regurgitation or aortic stenosis have produced symptoms above and beyond what has been recorded in the C&P reports. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In sum, the evidence of record does not support an award of an increased rating for the Veteran's IHD, under either the old or new rating criteria. The record demonstrates that his IHD has caused dyspnea, fatigue, and angina at a workload of between 3 to 5 METs. There is no persuasive evidence that his IHD has caused chronic congestive heart failure, a decreased workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of 30 percent or less. Neither the Veteran nor his representative have raised any other issues relating to this claim, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the record). The Board is grateful for the Veteran's honorable service, and this decision in no way is meant to detract from that service. The Board is constrained by law, however, and unfortunately there is no basis upon which to award the benefits sought. REASONS FOR REMAND Regarding the Veteran's increased rating claims for his right and left elbow disabilities, he was last afforded a VA examination in November 2021. That examination was scheduled pursuant to the Board's July 2021 remand, which instructed the examiner to attempt to estimate functional loss in the form of pain, fatigue, weakness, and lack of endurance, to include estimating any additional impairment due to flare-ups and with repeated use over time. The November 2021 C&P report indicated that the Veteran denied flare-ups. However, the report noted that he experienced functional loss in addition to that which was captured in initial range of motion testing, including difficulty with pain due to any bending, twisting, prolonged standing, and walking. Moreover, the Veteran was noted to be "unable to perform repetitive [range of motion] due to pain." Despite this last finding, the examiner indicated that the Veteran would likely only lose an additional five degrees of range of motion (when compared to initial measurements) following repeated use over time. These findings appear to be in conflict with one another; it is unclear why being unable to perform repetitive-use testing due to pain is equivalent to only five additional degrees of lost range of motion. Accordingly, the Board finds that the November 2021 C&P report violates the directives laid out in DeLuca v. Brown, 8 Vet. App. 202 (1995), and Mitchell v. Shinseki, 25 Vet. App. 32 (2011). DeLuca held that "functional loss due to pain must specifically note the limitation of motion and the extent of pain on motion." DeLuca, 8 Vet. App. 202. Mitchell noted that it is crucial for an examiner, when performing range of motion testing, to assess "at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain," so as to "allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain." Mitchell, 25 Vet. App. 32. Here, the November 2021 C&P report showed that the Veteran experienced pain throughout range of motion insofar as he was unable to perform repetitive-use testing. The examiner did not provide sufficient information as to the extent of the "disabling effects" of this pain. Rather, the examiner simply subtracted five degrees of lost range of motion from initial measurements without further explanation. An updated examination is needed. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Regarding the Veteran's claim for a TDIU, he asserted that his service-connected disabilities have rendered him unemployable since November 2010, when he retired from working as a stocker at Walmart. Notwithstanding, the Board observed in its prior remand that there is evidence to suggest that he continued working part time for a bread company and was at one point self-employed as a cattle and goat farmer. Moreover, the medical evidence of record reflects a generally shared opinion that the Veteran has been capable of a limited range of work (see, for example, October 2019 and May 2020 VA opinions). The Board is aware that the issue of entitlement to a TDIU is a legal determination, not a medical one. In addition, being employed part time or in marginal employment situations does not necessarily preclude an award of TDIU. The Board is remanding the Veteran's claims for increased ratings for his bilateral elbow disabilities, in part to determine the functional impairment of those disabilities in terms of loss of range of motion. This evidence is relevant to a determination of entitlement to a TDIU. The Board thus finds that the TDIU claim is inextricably intertwined with the remanded claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Regarding SMC, the Veteran's attorney, in January 2017, raised the issue of entitlement to SMC under 38 U.S.C. § 1114(s). That statute provides that SMC is warranted if a veteran has a service-connected disability rated as total (100 percent disabling), and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) by reason of such veteran's service-connected disability or disabilities is permanently housebound. The attorney raised this issue in the context of a potential award of TDIU, which, depending on the circumstances of that award, could serve as the basis for SMC. The Board has determined that the issue of entitlement to a TDIU must be remanded for evidentiary development. Accordingly, the issue of entitlement to SMC must be remanded as well. Harris, 1 Vet. App. 180, 183. The matters are REMANDED for the following action: 1. Obtain all outstanding VA medical records pertaining to the Veteran, to include all records of treatment dating from August 2021 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current nature and severity of the Veteran's bilateral elbow disabilities. The claims file should be made available to the clinician for review in connection with the examination. In particular, the clinician should be directed to perform range of motion testing to determine to the extent of limitation of motion. Additionally, to the extent possible, the clinician must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The clinician should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the clinician should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the elbows are used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. Furthermore, the clinician should comment as to whether range of motion measurements during flare-ups or following repeated use can be estimated for prior VA elbow examinations performed in April 2015, October 2019, and November 2021. If the clinician is unable to conduct the required testing or provide the requested estimates, or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE CLINICIAN MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. The clinician must provide a complete rationale for all of the findings and opinions included in his or her report. (Continued on the next page) 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU and entitlement to SMC. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.