Citation Nr: 22014197 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 15-04 065 DATE: March 11, 2022 ORDER A separate 30 percent rating as of November 17, 2010, for supraventricular arrhythmias is granted. A disability rating greater than 10 percent for coronary artery disease (CAD) prior to August 27, 2019, and greater than 30 percent thereafter is denied. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's supraventricular arrhythmias manifested in paroxysmal atrial fibrillation with more than 4 episodes per year. 2. Prior to August 27, 2019, the Veteran's CAD manifested in a METs level of greater than 7 but less than 10, with a left ventricular ejection fraction to be greater than 55%. 3. From August 27, 2019, the Veteran's CAD manifests in a METs level greater than 5 but less than 7. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for supraventricular arrhythmias as of November 17, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code (DC) 7010. 2. The criteria for a rating greater than 10 percent for coronary artery disease (CAD) prior to August 27, 2019, and greater than 30 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, DCs 7010-7005. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from September 1962 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions. The Board subsequently remanded the claims in January 2021 in order to obtain updated medical records and opinions. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Effective November 14, 2021, VA amended the rating criteria for the cardiovascular system under 38 C.F.R. § 4.104. 86 Fed. Reg. 54089 (Sep. 30, 2021). This amended regulation applies to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after November 14, 2021. Claims pending prior to the effective date will be considered under both the pre- and post-amendment rating criteria, and whichever is more favorable to the Veteran will be applied. However, the Board may not apply the post-amendment rating criteria to a period prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Conversely, the Board is not precluded from applying the pre-amendment rating criteria to a period on or after the effective date of the post-amendment rating criteria so long as it was in effect during the pendency of the appeal. In this matter, the Board has determined that the pre-amendment rating criteria are most favorable to the Veteran. Supraventricular Arrhythmias The Veteran's service-connected supraventricular arrhythmias is rated under Diagnostic Code 7010. The Veteran was rated at 10 percent under DC 7010 for his supraventricular arrhythmias effective August 27, 2019. Prior to this date, the Veteran's arrhythmia rating was combined with the rating assigned for his CAD. The Veteran contends that he is entitled to a greater rating as well as an earlier effective date for the separate rating. The Veteran has pointed to various notes contained in the record that show the Veteran had arrhythmias which warranted a separate rating prior to the August 27, 2019, effective date. Prior to November 14, 2021, under Diagnostic Code 7010, a 10 percent rating is warranted for permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by electrocardiogram or Holter monitor. A 30 percent evaluation is warranted for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by electrocardiogram or Holter monitor. 38 C.F.R. § 4.104. A 30 percent rating is the maximum rating allowed under DC 7010. Private medical records dated March 2010 show the Veteran to have paroxysmal atrial fibrillation. Further, the Veteran was monitored for 24 hours using a Holter monitor. During this 24-hour period the Veteran was noted to have 4 supraventricular events. These findings were confirmed in a September 2019 private medical treatment record. The Veteran wore a Holter monitor for 48 hours in September 2019 and noted 3 supraventricular events in 48 hours. Although the Holter monitor showed less than the 4 supraventricular events required for a 30 percent rating, a VA examiner in March 2021 opined that, if a Holter monitor picked up 3 supraventricular events in a 48 hour period, the probability that the Veteran would not experience one more event in the entire year following is infinitesimally small. The Board agrees and finds that the maximum 30 percent rating is warranted effective November 17, 2010, the effective date for the Veteran's CAD. The Board notes that the record shows the Veteran met the 30 percent criteria in a March 2010 study. However, section 5110(a), Title 38, United States Code, provides that the effective date of an award based on an original claim of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection will be the date of receipt of the claim, or the date entitlement arose, whichever is the later. For claims filed within one year of discharge from active service, the effective date will be the day after discharge. The Veteran filed his claim on November 17, 2011, but was granted an effective date one year prior due to a liberalizing law. Thus, his CAD rating was assigned a November 2010 effective date. As his arrhythmias arise out of his service connected CAD, November 11, 2010, is the earliest date effective date available to the Veteran for the 30 percent rating assigned herein. CAD Prior to August 27, 2019 Prior to August 27, 2019, the Veteran's CAD was assigned a 10 percent rating under 38 C.F.R. § 4.104, DC 7005. Prior to November 14, 2021, under 38 C.F.R. § 4.104, DC 7005, a 30 percent rating was warranted where a workload of greater than 5.0 METs but not greater than 7.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating was warranted where there is more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3.0 METs but not greater than 5.0 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 was warranted where there is chronic congestive heart failure, or; a workload of 3.0 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 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. For the purposes of a 60 percent evaluation, the pre-amendment rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase "30 to 50 percent" means 30 percent through 50 percent. Id. at 380. For the purposes of a 100 percent evaluation, the pre-amendment rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See Id. at 382. March 2010 private medical records show that that Veteran had an left ejection fraction (LEF) of 58 percent. He was noted to be generally active and working out three times a week. His stress test was clinically negative. Privat records also note no chest pain, shortness of breath, palpitations or syncope. See August 2010 private medical records. March 2015 private record show that the Veteran's at worst reported LEF was 55 percent. Though March 2015 records show that the Veteran had reports of syncope and shortness of breath, there are no METs reports which indicate that his METs during this time were between 5 and 7, which is required for a 30 percent rating. The records do show that a 2012 nuclear stress test showed normal exercise capacity. A VA examination in April 2015 found that an interview-based test yielded a METs level of greater than 7 but less than 10. The examiner indicated that no congestive heart failure, cardiac hypertrophy or cardiac dilatation was present. The examiner noted the left ventricular ejection fraction to be greater than 55%. The Board notes a February 2012 ischemic heart disease disability benefits questionnaire which was filled out by the Veteran's private provider that reported an LEF of 50 percent. However, the physician noted the 50 percent LEF was recorded in 2002. Thus, the Board that the LEF reading noted in the Veteran's March 2010 private medical record is a more accurate representation of his LEF for the period on appeal. Based on the foregoing, the Board finds that a rating higher than 10 percent is not supported by the record. There are no records which indicate the Veteran met the criteria for a rating higher than 10 percent either by METs or LEF and none of the records indicate that the Veteran had any hypertrophy or dilatation on diagnostic testing. Because the evidence of record shows a METs level consistent with the assigned 10 percent rating, as well as the absence of any cardiac hypertrophy or dilatation, a rating higher than 10 percent prior to August 27, 2019, is denied. As of August 27, 2019 The Veteran's CAD was assigned a 30 percent rating under DCs 7010-7005 as of August 27, 2019. In order for the Veteran to meet the criteria for a rating higher than 30 percent, he would have to have METs of less than 5.0 or an ejection fraction at or less than 50 percent. The Board finds that the record does not show that the Veteran's CAD meets the criteria for a rating than 30 percent. An August 2019 private medical record showed that the Veteran's LEF was 50-55 percent. An August 2019 VA examination noted a METs level greater than 5 but less than 7 based on an exercise stress test and an interview. The examiner noted a left ventricular ejection fraction of 55%. The Veteran submitted private medical records in May 2021 which show that his LEF was estimated to be 55 percent. Thus, the medical records of evidence do not show that the Veteran meets the criteria for a rating higher than 30 percent. These findings are all consistent with the Veteran's current 30 percent rating. The Board notes that the Veteran agreed with his 30 percent rating in a November 2021 Statement in Support of Claim and that the January 2022 Informal Hearing Presentation (IHP) filed on behalf of the Veteran reported that the Veteran agreed with the ratings assigned for his CAD. Thus, a rating higher than 30 percent for the Veteran's CAD as of August 27, 2019, is denied. REASONS FOR REMAND TDIU A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation because of a single service-connected disability ratable at 60 percent or more, or because of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Further, disabilities affecting a single body system, e.g. cardiovascular, will be considered as one disability when determining if a TDIU is warranted. 38 C.F.R. § 4.16(a)(3). In the present instance, the Veteran is rated at 30 percent for his CAD and, with the above grant, 30 percent for the Veteran's supraventricular arrhythmias. These ratings combine to 50 percent. 38 C.F.R. § 4.25. Although the Veteran's cardiovascular disabilities combine to over 40 percent, the Veteran's overall combined disability rating is 60 percent, less than the required 70 percent to be eligible for a TDIU. Therefore, as the Veteran does not meet the schedular criteria for a TDIU. However, the Veteran could be awarded a TDIU on an extraschedular basis. Although entitlement to extraschedular TDIU is determined in the first instance by the Director of Compensation Service, the RO and the Board are tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. That threshold determination must be supported with "a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue." 38 C.F.R. § 4.16 (b). In this case, the Veteran has submitted statements that he was a tool and die maker which required a good deal of physical labor. Further, an April 2015 VA examination stated that the Veteran's heart disabilities preclude the Veteran from being gainfully employed in heavy-duty operations. The Board finds this sufficient to warrant consideration for a TDIU on an extraschedular basis. As such, the claim is remanded to the Director of Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. Alexis M. Parrish Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.