Citation Nr: 22018389 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-45 175 DATE: March 29, 2022 ORDER Entitlement to an initial 100 percent rating for ischemic heart disease (IHD), from November 14, 2012 to October 24, 2017, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a total disability rating based on individual unemployability (TDIU), from November 14, 2012, is dismissed as moot. FINDINGS OF FACT 1. From November 14, 2012 to October 24, 2017, the Veteran's IHD symptoms more nearly approximated a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, syncope. 2. The Veteran is now in receipt of a 100 percent schedular disability rating for his service-connected IHD from November 14, 2012, does not have an additional service-connected disability ratable at 60 percent or higher, and none of the Veteran's disabilities alone, apart from his IHD, would render him unemployable such that he would be entitled to special monthly compensation (SMC) under 38 U.S.C. § 1114(s)(1). CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent rating for IHD, from November 14, 2012 to October 24, 2017, 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) 7005. 2. As an initial 100 percent rating has been awarded for IHD during the entire claim period, the issue of entitlement to a TDIU from November 14, 2012, is dismissed as moot. 38 U.S.C. §§ 1114(s)(1), 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1969. This case initially came before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for IHD and assigned a 60 percent rating, effective November 14, 2012. In October 2015 the Veteran filed a notice of disagreement (NOD) and in July 2018 the RO issued a statement of the case (SOC). In August 2018 the Veteran filed a substantive appeal (via VA Form 9). In the August 2019 decision, the Board remanded the Veteran's claim to obtain outstanding private medical records identified by the Veteran. Specifically, at the November 2017 VA examination the Veteran reported that he had a stent implant surgery conducted on June 25, 2016. The RO made two attempts to contact the Veteran regarding these records which was met with no response. Therefore, no further action is necessary to obtain any outstanding private treatment records. 38 C.F.R. § 3.159(c)(1). In November 2017, the RO granted a rating of 100 percent for IHD, effective October 24, 2017, creating a staged rating. Higher Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). 1. IHD In reviewing the history of this claim, the Board finds that the March 2014 rating decision which granted entitlement to service connection for IHD did not become final. Although the Veteran did not file a NOD within one year, the Board must consider evidence received within the year following each rating decision, including VA treatment records constructively of record. Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir 2014) (VA must provide a determination that is directly responsive to new and material evidence received with the remaining appeals period); Bond v. Shinseki, 659 F.3d 162, 1368-69 (2011); 38 C.F.R. § 3.156(b). The Veteran's IHD was evaluated at the January 2015 VA examination and this report constitutes new and material evidence with respect to the March 2014 rating decision. 38 C.F.R. § 3.156(b). In the August 2019 decision, the Board characterized the issue as a claim for an earlier effective date for the assigned 100 percent rating for his service connected IHD. The Board also noted that the claim period began in April 2015 following the submission of a letter which the Board construed as an increased rating claim. However, as the March 2014 rating decision did not become final, this issue is more appropriately characterized as a claim for a higher initial rating because entitlement to an earlier effective date for the increase in the evaluation of IHD from 60 to 100 percent, effective October 24, 2017, is not separate and distinct from the higher initial rating claim but rather an aspect of the claim on appeal, which seeks the highest rating possible for the entire appeal period. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The October 24, 2017 effective date of the 100 percent rating is the date of a VA examination. However, an "effective date should not be assigned mechanically" based on test results, but rather "all of the facts should be examined to determine" the appropriate effective date. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) The Veteran's IHD is currently rated under 38 C.F.R. § 4.104, DC 7005. For rating diseases of the heart, 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 rating, 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). Under DC 7005, a 30 percent rating is assigned when a workload greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation. A 60 percent rating is assigned for more than one episode of acute congestive heart failure in the past year; or a workload of greater than 3 METs but not greater than 5 METs which 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 is assigned for chronic congestive heart failure; or a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. For the reasons specified below, the Board finds that the Veteran is entitled to an initial 100 percent rating for IHD from November 14, 2012. A November 2013 private physician noted that the Veteran underwent coronary bypass surgery in May 2006. The private physician noted that the Veteran experienced dyspnea and fatigue. Based on results of an interview-based METs test, the Veteran could perform a workload greater than 5 METs but not greater than 7 METs. A March 2014 VA examiner noted that the Veteran does not have congestive heart failure. No evidence of cardiac hypertrophy or dilatation was noted. The VA examiner noted a left ventricular fraction of 55 percent. No diagnostic exercise test was conducted, however, based on the Veteran's responses the VA examiner noted that the Veteran could perform a workload greater than 3 METs but not greater than 5 METs. The VA examiner noted the Veteran experienced dyspnea, fatigue, and angina. The VA examiner also noted that the Veteran's IHD impacted his ability to work. A January 2015 VA examiner noted the Veteran does not have congestive heart failure. The VA examiner noted a left ventricular fraction of 55 percent based on the March 2014 echocardiogram. The VA examiner noted that the Veteran experienced dyspnea. Based on results of an interview-based METs test, the Veteran could perform a workload of 3 METs or less. The VA examiner noted these measurements were not based solely on the Veteran's heart conditions as his non-service connected hip disability partially contributed to his dyspnea. Where, as here, it is not possible to distinguish the effects of a nonservice-connected disability or disabilities from those of a service-connected disability, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In light of Mittleider, the Veteran's METs results from the January 2015 VA examination are deemed attributable to his service connected IHD. Accordingly, the January 2015 VA examination results indicate that the Veteran could perform a workload of 3 METs or less. A November 2017 VA examiner noted that the Veteran had a coronary artery bypass graft in 2016. The VA examiner noted that a stent was implanted on June 25, 2016. The VA examiner noted that the Veteran does not have congestive heart failure. The VA examiner noted a left ventricular fraction of 55-60 percent. Based on results of an interview-based METs test, the Veteran could perform a workload of 3 METs or less. The VA examiner noted that the METs level was due solely to his IHD. There is evidence of symptoms listed in the criteria for a 30, 60, and 100 percent rating under DC 7005. The Veteran's METs results from the November 2013 private disability benefits questionnaire VA examination warrant a 30 percent rating while the results from the March 2014 VA examination warrant a 60 percent rating. The Veteran's METs results from the January 2015 and November 2017 VA examinations warrant a 100 percent rating. The Veteran has not exhibited a left ventricular dysfunction with an ejection fraction of 30 to 50 percent at any time during the appeal period, nor has he experienced one episode of acute congestive heart failure in the past year which are criteria for a 60 percent rating. However, his METs results indicated he could perform a workload of 3 METs or less as early as January 2015 and the Veteran has exhibited symptoms such as dyspnea, fatigue, angina, dizziness, and syncope. When a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Therefore, the evidence is approximately evenly balanced as to whether the symptoms more nearly approximate the criteria for a 100 percent rating throughout the appeal period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 100 percent rating is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran's TDIU claim was raised as part and parcel of his appeal for a higher initial rating for IHD. Therefore, the claim period begins November 14, 2012, the effective date of service connection for his IHD. As the Board is granting a 100 percent rating for IHD from November 14, 2012, there remains no time during the claim period where the schedular rating is less than total, as required for a TDIU. See 38 C.F.R. § 4.16(a). Although 38 C.F.R. § 4.16(a) provides that a TDIU is only warranted where the schedular rating is less than total, an award of a 100 percent disability rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC pursuant to 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disability ratable at 60 percent or higher. The Court held in Buie and in Bradley v. Peake, 22 Vet. App. 280, 294 (2008) that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114(s). This case is distinguished from Bradley because there is no scenario under which the grant of TDIU would assist the Veteran in obtaining SMC under 38 U.S.C. § 1114(s). The Veteran is currently in receipt of service connection for IHD rated 100 percent, effective November 14, 2012; adjustment disorder with mild depression rated 30 percent, effective November 14, 2013; tinnitus rated 10 percent, effective November 14, 2013; diabetes mellitus type II rated 10 percent, effective November 14, 2013; bilateral hearing loss rated noncompensable, effective November 14, 2013, and scar rated noncompensable, effective January 29, 2015. On the April 2015 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) the Veteran stated that he became too disabled to work due to his IHD and last worked as a fork-lift driver in 1995. While the Veteran's service-connected adjustment disorder with mild depression causes him occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, this disability by itself does not prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. Further, it has not been noted or expressed by the Veteran that his diabetes mellitus type II or tinnitus impact his ability work. Therefore, there is no evidence to support the finding that any one of the Veteran's service-connected disabilities, alone, other than IHD, would render him unemployable such that it could serve as the single disability rated total, with the service-connected psychiatric disability then satisfying the additional disability ratable at 60 percent or greater. Further, there is no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. If the Veteran were to be awarded a TDIU ("total" rating) based on service connected IHD rendering him unemployable for any time during the claim period, it would impermissibly result in the same disability being "counted twice" in the assignment of a total rating, as it would be rating the "total occupational impairment" twice. See generally 38 C.F.R. § 4.14. Therefore, entitlement to a TDIU, from November 14, 2012, is considered moot, as the Veteran is already in receipt of a schedular evaluation of 100 percent from November 14, 2012 and the holding of Bradley is not applicable in this case. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Miller, 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.