Citation Nr: 22015960 Decision Date: 03/20/22 Archive Date: 03/20/22 DOCKET NO. 18-48 117 DATE: March 20, 2022 REMANDED Entitlement to an initial disability rating in excess of 30 percent for the service-connected coronary artery disease (CAD) status post myocardial infarction is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period on appeal prior to August 27, 2021 is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1969 to February 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO granted service connection for CAD status post myocardial infarction and assigned an initial disability rating of 30 percent, effective August 3, 2017. In May 2018, VA received the Veteran's Notice of Disagreement (NOD). In September 2018, the RO issued a Statement of the Case (SOC). In October 2018, VA received the Veteran's VA Form 9 appeal to the Board. At the outset, the Veteran has not worked since March 2018. See May 2021 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. He is currently in receipt of a TDIU effective August 27, 2021. See September 2021 rating decision. However, prior to August 27, 2021, the Veteran reported that he "can't do any work" due to his service-connected CAD status post myocardial infarction. June 2018 VA examination report. He has also stated that he experiences dizzy spells resulting in short black outs and worried that he might pass out while driving to work and cause an accident. See May 2018 Veteran statement. In light of the above evidence of unemployability due to the disability on appeal, an inferred claim for a TDIU prior to August 27, 2021 is reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial disability rating in excess of 30 percent for the service-connected CAD status post myocardial infarction is remanded. The Veteran last received a VA examination for his CAD status post myocardial infarction in June 2018. At the time of examination, the Veteran reported symptoms of chest pain, dizziness, shortness of breath, increased blood pressure, and palpitations. The examiner identified an October 2017 echocardiogram (ECG), which revealed "mild" dilation and left ventricular hypertrophy and a left ventricular ejection fraction (LVEF) of 62 percent. An interview-based metabolic equivalents (METs) test revealed an estimated METs level of 5 to 7 METs, consistent with activities such as walking one flight of stairs, golfing (without card), mowing lawn (push mower), and heavy yard work (digging). The Veteran has contended that the June 2018 examination was inadequate for several reasons. First, he asserted that the examination was conducted by a nurse practitioner "without expertise in the evaluation of cardiac conditions." Second, he noted that an electrocardiogram (EKG) was not conducted during the examination. Third, the Veteran stated that the examiner "did not even check my blood pressure or even check my pulse in any way." September 2019 Veteran statement. Regarding the competence of the June 2018 examiner, the question of "whether an examiner is competent and whether he has rendered an adequate exam are two separate inquiries." See Francway v. Wilkie, 930 F.3d 1377, (Fed. Cir. 2019) (quoting Mathis v. McDonald, 834 F.3d 1347, 1351 (Fed. Cir. 2016) (Hughes, J., concurring in denial of rehearing en banc)). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that person's opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the veteran challenges the competency of a medical examiner, "[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion." Id. at 1381. Rather than challenging the competency of the specific VA examiner in this case, the Veteran's objection appears to be based solely on the examiner's credentials as a nurse practitioner. The U.S. Court of Appeals for Veterans Claims (Court) has held that "[a] nurse practitioner, having completed medical education and training, [] fits squarely into the requirement of [38 C.F.R.] § 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions." Id. A registered nurse practitioner, such as the one who conducted the Veteran's VA examination in June 2018 has "advanced education and clinical training in a specialized area of health care" and "can diagnose, prescribe, and perform procedures." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1326 (31st ed. 2007). As a nurse practitioner is qualified to examine patients and diagnose disorders, the Board concludes that the June 2018 examiner, a nurse practitioner, was competent to perform the June 2018 examination. Further, there is no evidence of record to support the Veteran's assertion that a nurse practitioner, generally, is not competent to provide medical findings addressing the Veteran's service-connected CAD status post myocardial infarction, nor is there evidence that the specific nurse practitioner who performed the VA examination was not competent to provide such findings. Furthermore, the June 2018 examination report indicates that the examiner recorded findings for blood pressure and pulse. However, as correctly stated by the Veteran, the examiner did not perform an EKG (or ECG) during the examination. In addition, the Veteran has submitted evidence that his CAD status post myocardial infarction has worsened since the June 2018 examination. In this regard, of record is an August 2019 (received in September 2019) Veteran-submitted disability benefits questionnaire (DBQ) completed by a physician. The August 2019 DBQ is only partially completed, but nonetheless includes findings from an interview-based METs test. The interview-based METs test revealed an estimated METs level of 3 to 5 METs, consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph), due to symptoms of fatigue, angina, and dizziness. Given the discrepancy in METs scores between the June 2018 VA examination and August 2019 DBQ and nearly four year period since the June 2018 examination, remand is warranted for a new VA cardiac examination to ascertain the current severity and manifestations of the service-connected CAD status post myocardial infarction. 2. Entitlement to a TDIU due to service-connected disabilities for the period on appeal prior to August 27, 2021. The issue of entitlement to a TDIU due to service-connected disabilities prior to August 27, 2021 is inextricably intertwined with the issue of increased rating for the service-connected CAD status post myocardial infarction. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, adjudication of the TDIU claim must be deferred pending development of the increased rating claim on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for a cardiac examination to determine the current severity of his service-connected CAD status post myocardial infarction. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. All appropriate testing, to include an EKG and/or ECG, should be conducted. 2. Readjudicate the claim for a TDIU due to service-connected disabilities for the period on appeal prior to August 27, 2021. Alexis M. Parrish Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Small, Attorney Advisor 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.