Citation Nr: 22018594
Decision Date: 03/29/22	Archive Date: 03/29/22

DOCKET NO. 14-38 271
DATE: March 29, 2022

ORDER

Entitlement to an increased, initial 100 percent rating for coronary artery disease (CAD), status post coronary artery bypass surgery, during the period prior to April 27, 2017, is granted.

Entitlement to an increased rating in excess of 60 percent disabling for CAD, status post coronary artery bypass surgery, during the period from April 27, 2017 to November 13, 2021, is denied.

Entitlement to an increased rating in excess of 50 percent disabling for posttraumatic stress disorder (PTSD) is denied.

Entitlement to an increased initial rating in excess of 20 percent disabling for diabetes mellitus type II is denied.

Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) during the period prior to April 27, 2017 is granted.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from April 27, 2017 is granted.

REMANDED

Entitlement to service connection for sleep apnea is remanded.

Entitlement to an increased rating in excess of 60 percent disabling for CAD, status post coronary artery bypass surgery, during the period from November 14, 2021, is remanded.

FINDINGS OF FACT

1. The competing lay and medical evidence is in 'approximate balance' regarding whether the Veteran's service-connected CAD resulted in workload of 3 METs or less resulting in fatigue during the period from August 31, 2010 to April 27, 2017; therefore, the Board resolves the benefit of the doubt in favor of the Veteran.

2. The evidence persuasively supports a finding that during the period from April 27, 2017 to November 13, 2021, the Veteran's service-connected CAD did not result in: congestive heart failure; dyspnea, fatigue, angina, dizziness, or syncope resulting when there was a workload of 3 METs or less; or left ventricular dysfunction with an ejection fraction of less than 30 percent. 

3. The evidence persuasively supports a finding that the Veteran's level of occupational and social impairment during the period on appeal related to his service-connected PTSD is best summarized as occupational and social impairment with reduced reliability and productivity.  It has not manifested with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

4. The evidence persuasively supports a finding that during the period on appeal, the Veteran's diabetes mellitus type II has not required insulin, restricted diet, and regulation of activities.

5. The Veteran has now been granted a 100 percent rating for his CAD during the period prior to April 27, 2017, and he has additional service-connected disabilities during that period that are rated 60 percent or more disabling.

6. The evidence persuasively supports a finding that the Veteran has been unable to obtain and maintain gainful employment during the period from April 27, 2017 due to his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for an initial 100 percent rating for CAD, status post coronary artery bypass surgery, during the period prior to April 27, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (2017); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7005 (2017).

2. The criteria for an increased rating in excess of 60 percent disabling for CAD, status post coronary artery bypass surgery, during the period from April 27, 2017 to November 13, 2021, have not been met. 38 U.S.C. §§ 1155, 5107 (2021); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7005 (2021).

3. The criteria for an increased rating in excess of 50 percent disabling 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.

4. The criteria for an increased rating in excess of 20 percent disabling for diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913.

5. The criteria for SMC pursuant to 38 U.S.C. § 1114(s) from August 31, 2010 to April 27, 2017 have been met. 38 U.S.C. § 1114(s). 

6. The criteria for entitlement to TDIU have been met during the period from April 27, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.25. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1964 to September 1968. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2013 and December 2015 rating decisions issued by Department of Veterans Affairs (VA) regional offices.

This matter was previously remanded by the Board in October 2019 for additional development and is now before the Board for adjudication once again.

The Veteran filed a claim for entitlement to TDIU during the period on appeal, in April 2014, and he has also submitted evidence in support of this claim during the pendency of this appeal for increased ratings for his CAD and PTSD. As such, the Veteran's claim of entitlement to TDIU is part and parcel of those claims for increased evaluations, and it, too, is on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Similarly, entitlement to SMC under 38 U.S.C. § 1114(s) during the period prior to April 27, 2017 has been raised by the Board's grant, in this decision, of a 100 percent disability rating for CAD during the period prior to April 27, 2017. As such, entitlement to SMC under 38 U.S.C. § 1114(s) during the period prior to April 27, 2017 is also now on appeal and discussed herein.

INCREASED RATINGS

1. Entitlement to an initial 100 percent rating for coronary artery disease (CAD), status post coronary artery bypass surgery, during the period prior to April 27, 2017

The Veteran claims entitlement to an increased rating for his service-connected coronary artery disease, status post coronary artery bypass surgery (hereinafter, CAD). This disability is currently rated 60 percent disabling throughout the period on appeal under 38 C.F.R. § 4.104, Diagnostic Code 7005.  The current appeal periods begins on August 31. 2020, the date that service connection was granted for coronary artery disease.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

During the pendency of the appeal, the rating criteria for evaluating cardiovascular disorders under 38 C.F.R. § 4.104 were amended effective November 14, 2021. 86 Fed. Reg. 54089 (September 30, 2021) (to be codified at 38 C.F.R. § 4.104).

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. If the new criteria are more favorable, they will only be applied from November 14, 2021, when the regulation became effective.

During the period prior to November 14, 2021, under Diagnostic Code 7005, a 10 percent rating was warranted for a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication.

A 30 percent rating was warranted for coronary artery disease with a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electro-cardiogram, echocardiogram, or X-ray.

A 60 percent rating was warranted for more than one episode of acute congestive heart failure in the past year, or when 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 percent to 50 percent.

A 100 percent rating was warranted for chronic congestive heart failure; or when there is a workload of 3 METs or less which results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005.

One MET (metabolic equivalent) 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 decision 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) resulting in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2.

Here, the Board finds that the Veteran is entitled to a 100 percent disability rating for his service-connected CAD during the period prior to April 27, 2017.

A May 2013 VA examination report indicates that exercise METs testing was not completed because it is not required by the Veteran's treatment plan, but that, based on interview of the Veteran, the lowest level of activity at which the Veteran reports fatigue is 1-3 METs, which has been found to be consistent with activities such as eating, dressing, taking a shower, and slow walking (2 mph) for 1-2 blocks. "Buddy statements" (lay statements from third parties) from the Veteran's friends in the claims file indicate that he has had great difficulty performing activities at church, yardwork, and working as a real estate appraiser. See, e.g., Buddy Statement authored by M.B. (referred to by initials for privacy), dated March 29, 2014.

The Veteran's VA and private treatment records in the claims file do not evidence dyspnea, fatigue, angina, dizziness or syncope during activities consistent with the 1-3 METs level of activity during the period prior to April 27, 2017; however, they also do not explicitly support a finding to the contrary; in other words, they do not contain any evidence that the Veteran did not experience such symptoms at the 1-3 METs level of activity during that period. And there is no other evidence of record in the claims file, either, that shows that the Veteran did not experience fatigue during activities consistent with the 1-3 METs level of activity.

Accordingly, the Board finds that it is as likely as not that the Veteran's service-connected CAD resulted in workload of 3 METs or less resulting in fatigue during the period prior to April 27, 2017; therefore, the Board resolves the benefit of the doubt in favor of the appellant and finds that the Veteran is entitled to a 100 percent rating for his CAD during the period from August 31, 2010 to April 26, 2017. 

2. Entitlement to an increased rating in excess of 60 percent disabling for CAD during the period from April 27, 2017 to November 13, 2021

During the period from April 27, 2017 to November 13, 2021, the Veteran was afforded two VA examinations  one on April 27, 2017, and another on July 9, 2020. The reports of both of these examinations clearly indicate that at the time of those examinations, there was no chronic congestive heart failure, dyspnea, fatigue, angina, dizziness, or syncope resulting when there was a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent were not present at the time of those examinations. Furthermore, the Veteran's VA and private treatment records contain notes explicitly to the contrary. For example, an August 2014 VA treatment note detailing the results of an echocardiogram shows that the Veteran's left ventricular ejection fraction (LVEF) was 55 percent, and an October 2017 VA treatment note indicates that the Veteran was, at that time, "[f]ree of [c]ardiac related symptoms." A September 2019 treatment note in the Veteran's claims file indicates that his medications were changed because of new cardiomyopathy and congestive heart failure, but neither this note nor any of the other evidence of record reflects chronic congestive heart failure.

The lay statements and "Vocational Assessment[s]" in the record indicate that the Veteran's CAD caused him significant difficulty in his occupational, recreational, and household activities, but they do not evidence the presence of chronic congestive heart failure, dyspnea, fatigue, angina, dizziness, or syncope resulting when there was a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent during the period from April 27, 2017 to November 13, 2021. Nor does any of the other evidence of record.

In short, the evidence persuasively supports a finding that the Veteran's service-connected CAD did not result in chronic congestive heart failure, dyspnea, fatigue, angina, dizziness, or syncope resulting when there was a workload of 3 METs or less, or left ventricular dysfunction with an ejection fraction of less than 30 percent during the period from April 27, 2017 to November 13, 2021; therefore, there is no benefit of the doubt to resolve in the appellant's favor, and the Board finds that the Veteran is not entitled to an increased rating for CAD from April 27, 2017 to November 13, 2021. 

3. Entitlement to an increased rating in excess of 50 percent disabling for PTSD

The Veteran claims entitlement to an increased rating for his service-connected PTSD, which is currently rated 50 percent disabling throughout the period on appeal under 38 C.F.R. § 4.130, Diagnostic Code 9411.

This diagnostic code refers to the VA schedule General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 100 percent rating (the maximum schedular rating) is warranted where there is 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. 

A 70 percent rating is warranted where there 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 worklike setting); inability to establish and maintain effective relationships. 

A 50 percent rating is warranted where there is 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.  38 C.F.R. § 4.130, Diagnostic Code 9411.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign a rating 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 the examination. Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b).

The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in the rating criteria are not exhaustive, but rather, serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas. That is, the regulation requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas. Vasquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411.

Because the use of the term 'such as' in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). The Board recognizes that there is no formula to follow when assigning ratings. Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran's psychiatric disorder that affect the level of occupational and social impairment. Id. While particular symptoms associated with a higher rating may be present during pertinent portions of the appeal period, such symptoms are exemplars to aid in characterizing the degree of social and occupational impairment. Thus, while certain symptoms might be present on isolated occasions, such symptoms must produce the contemplated levels of occupational and social impairment to provide a basis for increased rating assignments in any particular period.

Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that the veteran's impairment must be due to those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118.

In this case, the Veteran's VA and private treatment records contain very little regarding PTSD or its symptoms. An August 2012 note in his VA treatment records indicates that he was not receiving mental health treatment, but that his wife reported that he had been crying out, twitching, and jerking in his sleep more frequently over the past year and that he had become more irritable and angry over minor things. A September 2013 note in his VA treatment records shows that the Veteran reported feeling frustrated and depressed regarding his declining physical health and cognitive function, but that he denied any suicidal ideation or intent and stated that he was not interested in mental health treatment at that time. The Veteran's VA and private treatment records, in general, do indicate any evidence of symptoms which would cause occupational and social impairment with deficiencies in most areas. Given the lack of any significant discussion of the Veteran's PTSD and its symptoms in his VA and private treatment records, the Board finds that the VA examination reports in the claims file are the most probative evidence of record regarding the severity of the Veteran's PTSD.

The first pertinent VA PTSD examination was performed in April 2013. According to the report of that examination, the Veteran's symptoms included a depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, mild memory loss, a flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's level of PTSD-related occupational and social impairment was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.

The second pertinent VA PTSD examination was performed in May 2017. According to the report of that examination, the Veteran's symptoms included a depressed mood, anxiety, chronic sleep impairment, mild memory loss, a flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner added a remark stating that, according to the Veteran's report, his symptoms progressed since his last VA examination, with increased stressors due to declining physical health, to include several major surgeries. The examiner opined that the Veteran's level of PTSD-related occupational and social impairment was best summarized as occupational and social impairment with reduced reliability and productivity.

The third and final VA examination performed during the period on appeal was performed in May 2020. The report of this examination lists symptoms including a depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. It also notes that the Veteran's mind ruminates about the past and that he has difficulty falling and staying asleep at night, that he doesn't like being touched at night, that he startles awake, takes naps during the day to help with fatigue and stress, no longer hunts, avoids watching violent or war-themed programming on TV and any other memories of Vietnam (or else he will have a flashback), that he is generally fine in public unless he gets mad, for example, when others are rude, and that he had no ongoing suicidal or homicidal ideation but does have suicidal ideation on rare occasions, especially when his medical issues flare up. The examiner opined that the Veteran's level of PTSD-related occupational and social impairment was best summarized as occupational and social impairment with reduced reliability and productivity.

Overall, the evidence of record simply does not demonstrate (a) total occupational and social impairment or (b) 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 worklike setting); inability to establish and maintain effective relationships.

The May 2020 VA examination report indicates that the Veteran had rare suicidal ideation when his medical problems flared up, but it also states that he had no ongoing suicidal or homicidal ideation. The Veteran's VA and private treatment records clearly do not evidence any regular suicidal ideation, much less any suicidal ideation that is present regularly enough to cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  The Board acknowledges the seriousness of this symptom and that in some cases, the presence of suicidal ideation alone can cause occupation and social impairment with deficiencies in most areas.  See Bankhead v. Shulkin, 29 Vet. App. 10 (2017).  There is no indication that the Veteran has ever been a danger to himself or others, or that his thoughts of suicide have ever been accompanied by an actual intent or plan.  The Board finds that this symptom is therefore not of the frequency, duration, or severity such that it warrants a higher, 70 percent rating.

The evidence of record also fails to demonstrate the presence of any of the other symptoms noted in the criteria for a 70 percent rating under the General Formula (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 worklike setting); inability to establish and maintain effective relationships).  The Board also does not find that the Veteran has had any other symptoms which are comparable in nature and severity to these types of symptoms.  See Mauerhan, 16 Vet. App. at 442.

However, many of the symptoms noted in the criteria for a 50 percent rating under the General Formula are shown in the evidence of record. For example, the VA examination reports do indicate that the Veteran demonstrated reduced reliability and productivity due to such symptoms as a flattened affect, panic attacks more than once a week, impairment of memory, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships.

Considering the foregoing, the Board finds that the evidence persuasively supports a finding that the Veteran's level of PTSD-related occupational and social impairment is best summarized, throughout the period on appeal, as, at worst, 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

As such, the Board finds that the Veteran is not entitled to an increased rating for his service-connected PTSD during any portion of the period on appeal.  The evidence is not in approximate balance, as the evidence persuasively demonstrates that a rating higher than 50 percent is not warranted.

4. Entitlement to an increased initial rating in excess of 20 percent disabling for diabetes mellitus type II

The Veteran also claims entitlement to an increased initial rating for his service-connected diabetes mellitus type II, which is currently rated 20 percent disabling under 38 C.F.R. § 4.119, Diagnostic Code 7913.

According to Diagnostic Code 7913, a 20 percent rating is warranted where the diabetes requires insulin and a restricted diet, or hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated.

Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under Diagnostic Code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. Id. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009).

In this case, the evidence reflects that the Veteran's diabetes mellitus requires an oral hypoglycemic agent and a restricted diet. However, it does not require insulin, therefore, the Board finds that the Veteran is not entitled to an increased evaluation of his service-connected diabetes mellitus type II.

The Veteran's VA and private treatment records do not indicate that insulin is required for treatment of his diabetes mellitus type II. They do show that the Veteran takes medication orally for treatment of his diabetes and that he has been counseled on restricting his diet, but they do not show that insulin is required. In fact, a September 2015 VA treatment note indicates that the Veteran's diabetes mellitus type II was diet controlled, at that time.

The Veteran was afforded VA examinations for his diabetes in October 2015, April 2017, and July 2020. The October 2015 VA examination report indicates that his diabetes was being managed by a restricted diet, alone, at the time of that examination. An addendum opinion was sought regarding the Veteran's diabetes, and in December 2015, when asked about "a consistent pattern of insulin and oral hypoglycemic agents when [the Veteran was] in inpatient status," as shown in his VA treatment records, another, second examiner stated that the insulin orders were standard orders to have available for hospitalized diabetics in case they run high while admitted, and it did not mean that he was insulin dependent. The examiner found that based on available information, the Veteran would not be described as an insulin dependent diabetic.

The April 2017 VA examination report indicates, once again, that the Veteran's diabetes was being managed by a restricted diet, only, at the time of the examination. Also of note, however, is the fact that the examiner indicated that the Veteran had diabetic nephropathy or renal dysfunction caused by his diabetes. The report of the July 2020 VA diabetes examination indicates that, at the time of that examination, the Veteran's diabetes treatment included prescribed oral hypoglycemic agents but not a restricted diet or insulin. This report also noted the diabetic nephropathy or renal dysfunction caused by diabetes mellitus. The examiner stated that "[d]iabetic nephropathy is a common complication of type 1 and type 2 diabetes. Over time, poorly controlled diabetes can cause damage to blood vessel clusters in your kidneys that filter waste from your blood. This can lead to kidney damage and cause high blood pressure. Review of the Veteran's records demonstrate that his diabetic condition predates his current kidney conditions by several years." 

The report of a separate, July 2020 VA kidney conditions examination indicates that the Veteran has a diagnosis of diabetic nephropathy, and regarding current symptoms, he reported frequent episodes of urinary tract infections and blood in urine a few times per month. The examiner stated that the Veteran's diabetic nephropathy affected his ability to function in an occupational environment in that he had to remain in close proximity to a bathroom at all times as a result of frequent urinations and subsequent filling of a bladder urinary container.

In sum, the evidence persuasively demonstrates that the Veteran's diabetes does not require insulin. Therefore, he is not entitled to an increased evaluation of his service-connected diabetes mellitus type II, itself.

And regarding the diabetic nephropathy, the Board has considered whether an increased rating is warranted based on this noted complication of diabetes; however, the Board observes that the Veteran has been granted service connection and a 60 percent rating for bladder cancer with chronic urinary tract infections, status post bladder removal and urostomy placement, based on the recurrent urinary tract infections. This rating was assigned pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7528, which contemplates "residuals such as voiding dysfunction or renal dysfunction, whichever is predominant." Further, the July 2020 VA kidney conditions examination report indicates that the etiology of the Veteran's recurrent urinary tract or kidney infections is unknown, but likely secondary to radical cystoprostatectomy with ileal conduit. Thus, the Veteran's urinary tract infections appear to be related to his bladder cancer, and whether they are related to his bladder cancer or diabetes, the Veteran is already compensated for his voiding and renal dysfunction and chronic urinary tract infections under 38 C.F.R. § 4.115b in connection with his service-connected bladder cancer. Thus, assigning another, separate or increased rating for those same symptoms in connection with his diabetes would violate the rule against pyramiding. See 38 C.F.R. § 4.14.

For the foregoing reasons, the Board finds that the Veteran is not entitled to an increased rating for his service-connected diabetes mellitus type II, and the claim for a rating higher than 20 percent is denied.  As the evidence persuasively favors against finding that a higher rating is warranted, it is not in approximate balance, and the benefit-of-the-doubt rule does not apply.  See Lynch v. McDonough, 21 F. 4th 776 (2021).

5. Entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s) during the period prior to April 27, 2017

A veteran is eligible for SMC under 38 U.S.C. § 1114(s) when he or she has a single service-connected disability rated as 100 percent, and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or, (2) by reason of such veteran's service-connected disability or disabilities, is permanently housebound. Id.; see also 38 C.F.R. § 3.350 (i). Entitlement to a TDIU based on a single disability can satisfy the "single service-connected disability rated as 100 percent" prong of an SMC claim. See Bradley v. Peake, 22 Vet. App. 280, 293 (2008).

In this decision, the Board has granted the Veteran a 100 percent disability rating for his service-connected CAD during the period prior to April 27, 2017; this 100 percent rating is in addition to a 60 percent rating that he was assigned, throughout the period on appeal, for his service-connected bladder cancer. Thus, during the period prior to April 27, 2017, the Veteran has a single disability rated as 100 percent disabling, by virtue of the increased rating for CAD granted in this decision, along with the 60 percent rating for bladder cancer. This is sufficient to support the award of SMC benefits in accordance with 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350 (i)(1). Accordingly, entitlement to SMC under 38 U.S.C. § 1114(s) from August 31, 2010 to April 27, 2017 is granted.

6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from April 27, 2017

As stated above, the Veteran has also claimed entitlement to TDIU and that issue is part and parcel of this appeal. In this decision, the Board has granted the Veteran a 100 percent disability rating for his service-connected CAD as well as SMC under 38 U.S.C. § 1114(s) during the period prior to April 27, 2017. Because the Veteran has already been granted those benefits, entitlement to TDIU is moot during the period prior to April 27, 2017. See Bradley, 22 Vet. App. at 280. However, as the Veteran has not yet been assigned a 100 percent disability rating for a single disability or SMC under 38 U.S.C. § 1114(s) during the period from April 27, 2017, entitlement to TDIU is not moot during this latter portion of the period on appeal. See id. Accordingly, the Board will review and adjudicate the issue of entitlement to TDIU during that period.

A total disability rating 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 as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). 

A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. 

Here, the Veteran's service-connected disabilities and ratings during the period from April 27, 2017 include: CAD rated as 60 percent disabling; bladder cancer rated as 60 percent disabling; PTSD rated as 50 percent disabling; right upper extremity peripheral neuropathy rated as 30 percent disabling; right lower extremity peripheral neuropathy rated as 20 percent disabling; left lower extremity peripheral neuropathy rated as 20 percent disabling; diabetes mellitus type II rated as 20 percent disabling; bilateral hearing loss rated as 20 percent disabling; left upper extremity peripheral neuropathy rated as 10 percent disabling; coronary artery bypass graft scar rated as 0 percent disabling; and scars associated with bladder cancer with chronic urinary tract infections rated as 0 percent disabling. The Veteran's combined disability rating, throughout the period from April 27, 2017, is 100 percent disabling. Thus, his disabilities and ratings meet this threshold schedular requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a).

The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19; see also Van Hoose, supra; Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). And while consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

The phrase "unable to secure and follow a substantially gainful occupation" has two components: (A) an economic component (an occupation earning more than marginal income); and (B) a noneconomic component (including (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability; and (3) whether the veteran has the mental ability). Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Here, the evidence of record supports a grant of TDIU from April 27, 2017.

The record contains two "Vocational Assessment[s]" authored by a vocational rehabilitation consultant  one dated in April 2014, and another dated in February 2019. The February 2019 assessment indicates that the Veteran completed high school and began attending the University of Texas (UT) but was unable to complete his education there because he was drafted into the military and decided to enlist into the Air Force before he graduated; it also states that the Veteran was trained on nuclear missiles while in the military, obtained his bachelor's degree from UT in nuclear physics and engineering upon discharge, and then worked in research for several years thereafter. The assessment states that he then obtained a master's degree in real estate and licensing as a real estate appraiser in 1979. He reportedly worked in related capacities until 2008, when he had his coronary artery bypass procedure for treatment of his service-connected CAD in 2008. The assessment states that he was unable to ever return to work in his former position as a senior real estate appraiser and expert witness in bankruptcy court due to his CAD and PTSD symptoms. The Veteran reported that he then attempted to work on an independent basis as a real estate appraiser on a very part-time basis, rarely over 3 to 10 hours per week, until 2014 when he could no longer work in any capacity due to his service-connected CAD, diabetes and PTSD. In these assessments, the authoring vocational rehabilitation consultant opined that the Veteran has been unable to engage in any substantial gainful occupation since January 2008 due to his CAD and PTSD symptoms.

The buddy statements in the claims file indicate that despite the Veteran's best efforts, he has been unable to continue his work as a real estate appraiser, even on an independent, contractual, very part time basis, and that he has also been unable to continue working/volunteering at church and doing yard work.

His VA treatment records show that his service-connected bladder cancer was treated with a cystoprostatectomy with ileal conduit on October 28, 2009. He wears a urostomy bag or similar appliance in connection with this disability. 

An October 2015 VA diabetes mellitus examination report indicates that the Veteran was weak, frail and pale in appearance, and could not work due to other health problems, aside from the diabetes mellitus, but it is not clear which health problems rendered the Veteran unable to work in the examiner's opinion. The July 2020 VA kidney conditions examination report indicates that the Veteran "must remain in close proximity to a bathroom at all time[s] as a result of frequent urinations and subsequent filling of bladder urinary container" (urostomy bag). The April 2017 VA heart conditions examination report indicates that the Veteran reported "[doing] well until recently when he started having shortness of breath with exertion for the past eight months." According to an interview-based METs test, the Veteran experienced dyspnea during activities in the >3-5 METs level, which has been found to be consistent with activities such as light yard work (weeding), mowing lawn (power mower), brisk walking (4 mph). The reports of the VA PTSD examinations conducted on and since April 27, 2017 indicate that the Veteran's PTSD causes occupational and social impairment due to such symptoms as a depressed mood, anxiety, chronic sleep impairment, recurring (but not constant) panic attacks, mild memory loss, a flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The December 2019 VA urinary tract conditions examination report indicates that the Veteran's service-connected disabilities cause a slowed "mental capacity," weakness and fatigue and render him unable to climb, squat, or crawl. It also indicates that his prior job as a real estate appraiser involved duties that were time sensitive and intense from a mental and concentration perspective due to legal reasons and the math and detail involved. The December 2019 VA peripheral nerves conditions examination report shows that his bilateral upper and lower extremity peripheral neuropathy cause weakness and numbness in his upper extremities and numbness in his lower extremities which makes it hard for him to hold pens, small tools, and to climb ladders, cause his handwriting to be poor, and cause him to stumble when walking. The April 2021 VA heart conditions examination report indicates that "the Veteran is better suited to a predominantly sedentary vocation as a result of his chronic cardiac conditions."

Thus, the Veteran's service-connected heart condition would make it difficult for him to work in a job that is even minimally physically demanding. He would have to stay near a bathroom at all times and would be best suited to a predominantly sedentary job due to his bilateral lower extremity peripheral neuropathy; however, even a sedentary job that is not physically demanding and can be done near a bathroom would be difficult as the Veteran's bilateral upper extremity peripheral neuropathy makes it difficult for him to hold pens and other small objects, to write, and presumably to type, too. Further, the Veteran's service-connected PTSD would interfere with his sleep, motivation, and memory. All of these functional limitations in combination would greatly limit the Veteran's occupational prospects.

Considering all of the foregoing, the Board finds that the evidence persuasively supports a finding that the Veteran has been unable to secure or follow a substantially gainful occupation, within the constraints of the laws and regulations set forth above, since April 27, 2017 as a result of his service-connected disabilities, considered in combination. 38 C.F.R. § 4.16(a).

REASONS FOR REMAND

1. Entitlement to service connection for sleep apnea is remanded.

A September 2014 VA examination report contains the following statements from the examiner, in pertinent part: "Sleep apnea can be worsened by medication that relax the airway musculature such as muscle relaxers, sedatives, and ETOH. Sleep apnea can also be worsened by excessive airway tissue such as in obesity."

Upon review of the claims file, the Board finds that the Veteran is on a variety of different medications and limited in his ability to exercise due to his service-connected disabilities. A limitation of one's ability to exercise may lead to obesity, which can be an intermediate step in a causal relationship warranting service connection based on causation or aggravation of a non-service-connected disability by a service-connected disability.

None of the VA examination reports of record, including that obtained in July 2020 (which was after the Board's most recent remand), address whether the Veteran's sleep apnea is caused by the medications that he takes for his service-connected disabilities, or whether his service-connected disabilities caused obesity which, in turn, caused his sleep apnea. The Board finds that these questions have been raised by the evidence, and as such, additional information is needed in the form of an addendum VA examination addressing those questions before this issue can be adjudicated. This issue thus must be remanded for such an addendum opinion to be obtained.

2. Entitlement to an increased rating in excess of 60 percent disabling for coronary artery disease (CAD), status post coronary artery bypass surgery, during the period from November 14, 2021

As noted above, the rating criteria for evaluating cardiovascular disorders under 38 C.F.R. § 4.104 were amended effective November 14, 2021. 86 Fed. Reg. 54089 (September 30, 2021) (to be codified at 38 C.F.R. § 4.104).

Under the new rating criteria, CAD is rated using the general rating formula for diseases of the heart. A 60 percent rating is assigned if workload of 3.1-5.0 METs results in heart failure symptoms. A maximum 100 percent rating is assigned if workload of 3.0 METs or less results in heart failure symptoms.

The Board finds that the evidence currently of record is not adequate to rate the Veteran's CAD during the period from November 13, 2021. The September 2019 treatment note in the Veteran's claims file indicates that his medications were changed because of new cardiomyopathy and congestive heart failure, but neither this note nor any of the other evidence of record reflects chronic congestive heart failure. In December 2019, VA asked the Veteran to complete and return a VA Form 21-4142 and VA Form 21-4142a (release and authorization forms) so VA could obtain the Veteran's pertinent private treatment records, but the Veteran did not complete and return those forms. The subsequent July 2020 VA heart conditions examination report does not mention congestive heart failure.

VA has a duty to ensure any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (overruled on other grounds, Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). A medical examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability... in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). If an examination report does not contain sufficient detail, "it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return inadequate examination report).

Here, the Board finds that the July 2020 VA heart conditions examination report does not describe the Veteran's CAD in sufficient detail for the Board's evaluation of his CAD during the period from November 14, 2021, under the new criteria, to be a fully informed one. Specifically, while the evidence does not show chronic congestive heart failure, it is unclear whether a workload of 3.0 METs or less results in heart failure symptoms. Another VA examination or an addendum opinion is needed to answer that question, and the Board must remand for such an opinion.

Regarding the request for the authorization and release forms for the Veteran's private treatment records, as the issues of entitlement to service connection for sleep apnea and entitlement to an increased rating for CAD from November 14, 2021 are being remanded anyway, the Board finds that the Veteran should be asked once again to complete said forms for any private treatment related to his heart disability and sleep apnea before the aforementioned VA examination is performed or addendum opinion is obtained. The Board notes, however, that the duty to assist is not always a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). It is imperative that the Veteran assist with VA's efforts to obtain his pertinent private treatment records by returning the requested authorization and release forms; failure to do so may result in adverse action related to these remanded claims, up to and including denial of the remainder of the issues on appeal.

The matters are REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for any private healthcare providers that he has received treatment from in relation to his CAD and sleep apnea, to include South Charlotte Cardiology. Make two requests for the authorized records from all such private healthcare providers, unless it is clear after the first request that a second request would be futile.

2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's sleep apnea. The examiner must review the claims file. The examiner is asked to provide a response to the following:

(a.) Is the Veteran's sleep apnea at least as likely as not proximately due to any medication or other treatment taken or obtained for any service-connected disabilities?

(b.) Is the Veteran's sleep apnea at least as likely as not aggravated, i.e., worsened beyond its natural progression, by any medication or other treatment taken or obtained for any service-connected disabilities?

(c.) Is it at least as likely as not that the Veteran has been obese as a proximate result of his service-connected disabilities?

(d.) Is the Veteran's sleep apnea at least as likely as not proximately due to his obesity?

(e.) Is the Veteran's sleep apnea at least as likely as not aggravated by his obesity?

Provide a complete rationale to support the opinions.

3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected coronary artery disease. The examiner should review the relevant evidence of record (including the September 2019 note from the Veteran's private physician indicating that his medications have been changed because of new cardiomyopathy and congestive heart failure), provide a full description of the disability, and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 

 

Mary E. Rude

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Banks, 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.