Citation Nr: 23025035 Decision Date: 05/01/23 Archive Date: 05/01/23 DOCKET NO. 18-48 246 DATE: May 1, 2023 ORDER Entitlement to an increased initial rating in excess of 30 percent disabling prior to April 10, 2019, and in excess of 60 percent disabling thereafter, for ischemic heart disease (IHD) is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to an increased initial rating in excess of 40 percent disabling for prostate cancer is remanded. Entitlement to a total rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period prior, to April 10, 2019, the Veteran's IHD did not result in a workload of 5 metabolic equivalents (METs) or less; more than one episode of acute congestive heart failure in a year; left ventricular dysfunction with an ejection fraction of 50 percent or less; or chronic congestive heart failure. 2. For the period from April 10, 2019, and thereafter, the Veteran's IHD did not result in workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope; chronic congestive heart failure; or, left ventricular ejection fraction of less than 30 percent. CONCLUSION OF LAW The criteria for entitlement to an increased initial rating in excess of 30 percent disabling prior to April 10, 2019, and in excess of 60 percent disabling thereafter, for IHD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.100, 4.104, Diagnostic Code 7005. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1969 to June 1971, with combat service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2016, April 2016, and in November 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. While the case was in remand status, the RO increased the rating for the Veteran's heart disease to 60 percent effective from April 10, 2019. See January 2021 rating decision. In April 2021, the Veteran's attorney reiterated her prior requests for documents from the claims file and requested 60 days after the request is fulfilled to submit additional evidence or argument. She was provided a copy of the file in October 2021. It has been approximately 18 months since then, yet she made no further submissions or requested any additional time. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Veteran seeks a higher rating for his IHD. The Veteran's IHD is currently rated under Diagnostic Code 7005. 38 C.F.R. § 4.104, Diagnostic Code 7005. Effective November 14, 2021, VA amended the rating criteria for arteriosclerotic heart disease (coronary artery disease) under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005. 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. Prior to November 14, 2021, under 38 C.F.R. § 4.104, DC 7005, for arteriosclerotic heart disease (coronary artery disease) a 10 percent rating is warranted where a workload of greater than 7.0 metabolic equivalents (METs) but not greater than 10.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is 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 is 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 is 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. Under the pre-amendment rating criteria, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 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. The amended rating criteria provides that effective November 14, 2021, under 38 C.F.R. § 4.104, DC 7005, arteriosclerotic heart disease (coronary artery disease) is rated in accordance with the General Rating Formula for Diseases of the Heart. A 10 percent rating is warranted where a workload of 7.1-10.0 METs results in heart failure symptoms, or continuous medication is required for control. A 30 percent rating is warranted where a workload of 5.1-7.0 METs results in heart failure symptoms, or where there is cardiac hypertrophy or dilatation confirmed by echocardiogram or equivalent (e.g., multigated acquisition scan or magnetic resonance imaging). A 60 percent rating is warranted where a workload of 3.1-5.0 METs results in heart failure symptoms. A 100 percent rating is warranted where a workload of 3.0 METs or less results in heart failure symptoms. Under the post-amendment rating criteria, one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). When the level of METs at which breathlessness, 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 those symptoms may be used. Id. For purposes of the General Rating Formula for Diseases of the Heart, heart failure symptoms include, but are not limited to, breathlessness, fatigue, angina, dizziness, arrhythmia, palpitations, or syncope. 38 C.F.R. § 4.104, Note (3). Entitlement to an increased initial rating in excess of 30 percent disabling prior to April 10, 2019. Based on the evidence of record, the Board finds that a rating in excess of 30 percent is not warranted during this period based on the Veteran's symptomatology. Only the rating criteria in effect in and prior to 2019 can be considered. In a February 2016 VA heart conditions examination, the VA examiner diagnosed the Veteran with coronary artery disease (CAD), status post cardiac catheter to coronary artery. It was noted the Veteran took multiple medications for his CAD. The Veteran had not had a myocardial infarction, nor congestive heart failure. The Veteran's MET level was estimated to be greater than 3 to 5 METs, consistent with activities such as brisk walking or mowing the lawn. As other physical conditions contributed to the decrease MET level estimated, the examiner stated it was not possible to accurately estimate the percent of which the decreased MET level could be attributable to the Veteran's heart disease. It was reported that an echocardiogram performed in March 2013 showed an ejection fraction of 80 percent with moderate left ventricular hypertrophy. In December 2016, the Veteran was hospitalized with acute heart failure and atrial fibrillation. In February 2017, the Veteran underwent a direct current cardioversion (DCC) as an outpatient. In a March 2017 VA heart conditions examination, the VA examiner diagnosed the Veteran with coronary artery disease (CAD), status post cardiac catheter to coronary artery. It was noted the Veteran took multiple medications for his CAD. The Veteran had not had a myocardial infarction. However, the Veteran had one incident of acute congestive heart failure in the past year. The Veteran had between 1 and 4 episodes of intermittent atrial fibrillation in the past year. There was x-ray evidence of cardiac dilatation. The Veteran's MET level was estimated to be between 5 to 7 METs, consistent with activities such as walking one flight of stairs, heavy yard work, and mowing the lawn. As other physical conditions contributed to the decrease MET level estimated, the examiner stated it was not possible to accurately estimate the percent of which the decreased MET level could be attributable to the Veteran's heart disease. It was reported that an echocardiogram performed in January 2017 showed an ejection fraction to be 55 percent with moderate left ventricular hypertrophy. The Veteran underwent pulmonary vein isolation (PVI) and ablation in March 2018. VA and private treatment records are consistent with the VA examination findings. Considering all relevant evidence of record, the Board finds that the evidence indicates a workload of greater than 5.0 METs but not greater than 7.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, and there is cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Accordingly, the Board concludes that the Veteran's IHD warrants a 30 percent rating under DC 7005 because the Veteran's symptoms were shown at the requisite METs level and there is evidence of cardiac hypertrophy on electrocardiogram, throughout the appeal period. A higher 60 percent rating under DC 7005 is not warranted unless 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; there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Based on a review of all probative evidence, a rating in excess of 30 percent is not warranted. The evidence does not show that the Veteran has had more than one episode of acute congestive heart failure in the past year; or that the IHD is manifested by a workload that is greater than 3 METs and less than 5 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; and/or that LVEF is 30 to 50 percent, to warrant a higher rating of 60 percent. Rather, the Veteran does not have any history of more than one episode of congestive heart failure; his IHD is manifested by a workload greater than 5 and less than 7 METs, which results in fatigue, and his LVEF was, at worst, 55 percent (greater than 50 percent), as noted above in the VA examination reports. Thus, the Board concludes that the Veteran's IHD did not meet the criteria corresponding to a higher 60 percent rating under DC 7005 for this period on appeal. Entitlement to an increased rating in excess of 60 percent disabling from April 10, 2019, and thereafter. Based on the evidence of record, the Board finds that a rating in excess of 60 percent is not warranted during this period based on the Veteran's symptomatology. For this time period the Board can consider the rating criteria in effect prior to November 2021 for the entire appeal period and the revised rating criteria on and after the November 14, 2021 effective date. In an April 2019 VA heart conditions examination, the VA examiner diagnosed the Veteran with CAD, congestive heart failure, and atrial fibrillation. It was noted the Veteran took multiple medications for his heart conditions. The Veteran had not had a myocardial infarction, nor an incident of acute congestive heart failure in the past year. There was x-ray evidence of cardiac dilatation. During April 2019 interview based METs testing, the Veteran's MET level was estimated to be between 3 to 5 METs, consistent with activities such as light yard work, brisk walking, and mowing the lawn. He also had dyspnea and fatigue. As other physical conditions contributed to the decrease MET level estimated, the examiner stated it was not possible to accurately estimate the percent of which the decreased MET level could be attributable to the Veteran's heart disease. It was reported that an echocardiogram performed in September 2018 showed an ejection fraction to be 55 percent with left ventricular hypertrophy. In a June 2020 VA heart conditions examination, the VA examiner diagnosed the Veteran with CAD, congestive heart failure, and atrial fibrillation. It was noted the Veteran took multiple medications for his heart conditions. The Veteran had not had myocardial infarction, nor an incident of acute congestive heart failure in the past year. There was x-ray evidence of cardiac dilatation. The examiner noted that the Veteran's MET level had been maintained since the April 2019 examination and was estimated to be between 3 to 5 METs, consistent with activities such as light yard work, brisk walking, and mowing the lawn. He also had dyspnea and fatigue. As other physical conditions contributed to the decrease MET level estimated, the examiner stated it was not possible to accurately estimate the percent of which the decreased MET level could be attributable to the Veteran's heart disease. It was reported that an echocardiogram performed in September 2018 showed an ejection fraction to be 55 percent with left ventricular hypertrophy. VA and private treatment records are consistent with the VA examination findings. Considering all relevant evidence of record, the Board finds that the evidence indicates a workload of greater than 3.0 METs but not greater than 5.0 METs results in dyspnea, fatigue, angina, dizziness, or syncope, and there is cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. While the left ventricular ejection fraction was noted to be 55 percent for this period, the Board notes that it is not needed to warrant a 60 percent rating under the pre-amendment criteria, as discussed above. Accordingly, the Board concludes that the Veteran's IHD warrants the current 60 percent rating under DC 7005 because the Veteran's symptoms were shown at the requisite METs level and there is evidence of cardiac hypertrophy on electrocardiogram, throughout this period. A higher 100 percent rating under DC 7005 is not warranted unless 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. The evidence does not show that the Veteran has chronic congestive heart failure; or that the IHD is manifested by a workload that is less than 3 METs, resulting in dyspnea, fatigue, angina, dizziness, or syncope; or that LVEF is less than 30 percent; and/or heart failure symptoms, to warrant a higher rating of 60 percent. Rather, the Veteran does not have any history of more than one episode of congestive heart failure; his IHD is manifested by a workload greater than 3.0 and less than 5.0 METs, which results in fatigue, and his LVEF was, at worst, 55 percent (greater than 50 percent), as noted above in the VA examination reports. Thus, the Board concludes that the Veteran's IHD did not meet the criteria corresponding to a higher 100 percent rating under DC 7005 for this period on appeal. Finally, the Board has also considered the Veteran's contentions. However, the Veteran, while competent to report symptoms associated with IHD, questions of the medical nature and severity of such disability is a matter suited to the realm of medical expertise, which the Veteran has not been shown to have. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002). As such, the Board finds the medical evidence of record to be more probative. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an increased initial rating in excess of 30 percent disabling prior to April 10, 2019, and in excess of 60 percent disabling thereafter, for IHD is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran seeks service connection for a mental health disability due to traumatic experiences in the Republic of Vietnam. The Veteran is in receipt of the Combat Medic Badge. The Veteran's VA treatment records indicate diagnoses of major depressive disorder with psychotic features. Furthermore, Social Security Administration (SSA) records indicate a diagnosis of PTSD in January 1989. In a March 2016 VA examination, the VA examiner diagnosed the Veteran with depressive type schizoaffective disorder. The VA examiner noted symptoms of PTSD but found that the Veteran did not meet the DSM-5 criteria for a PTSD diagnosis. The VA examiner noted that A variety of diagnoses were assigned during this time, including schizoaffective disorder, depression, delusional disorder, and "organic personality syndrome" (while admitted at the Palo Alto VA from 1991 to 1992), polysubstance abuse and personality disorder not otherwise specified (from an evaluation dated 5/20/1993), dysthymia (from his PTSD C&P evaluation dated 5/17/1993), and "Manic Depressive Disorder - manic phase" (from an assessment conducted when the veteran was psychiatrically hospitalized, evaluation dated 2/1/1994). Though the veteran was admitted to a PTSD program at the Palo Alto VA in 1991, he was ultimately discharged from that program without a diagnosis of PTSD, but with rule-outs including paranoid schizophrenia, schizoaffective disorder, and alcohol withdrawal. The VA examiner noted that the Veteran endorsed having experienced some symptoms of PTSD "which are a source of psychological distress." However, the VA examiner did not provide an opinion as to whether any of the Veteran's currently diagnosed psychiatric disabilities were caused or aggravated by his service, to include his documented combat service. Based on the contradictory medical evidence of record and the Veteran's assertions and documented combat service, the Board finds he is entitled to another VA examination to clarify whether the Veteran has a PTSD diagnosis related to his combat service, and to determine if the etiology of any other diagnosed psychiatric disability is related to his service. 2. Entitlement to an increased initial rating in excess of 40 percent disabling for prostate cancer is remanded. The Veteran contends that his prostate cancer disability warrants a higher rating. Based on the evidence, a remand is necessary. Specifically, the Veteran was last afforded a VA examination in February 2016. Generally, a stale examination is not enough to require a remand for a new examination; however, the Veteran's June 2020 VA treatment records indicate catheterization and increased voiding dysfunction as a residual of his prostate cancer disability. VA's duty to assist includes providing a new medical examination when a veteran asserts or provides evidence that a disability has worsened, and the available evidence is too old for an adequate evaluation of the current condition. Accordingly, a more contemporaneous VA examination is required to provide a current picture of the Veteran's prostate cancer disability at issue on appeal. 38 C.F.R. §§ 3.326, 3.327. 3. Entitlement to TDIU is remanded. In October 2020, the Board found a claim for TDIU was part and parcel of the appeal. The RO did not include the issue in the following Supplemental Statement of the Case from January 2021, but, instead, issued a February 2021 rating decision denying the claim. The basis of the denial was that the Veteran had failed to complete and return VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, as the RO had requested in January 2021. The Veteran is advised he will be given another opportunity to complete this form, as the TDIU claim must be remanded because a decision on the remanded issues above could significantly impact a decision on the issue of entitlement to TDIU. He is advised this form solicits important information about his occupational and salary history, as well as his education and training. If he does not provide this information, VA will have to decide the claim based on the information in his file, which may be incomplete. He has an obligation to provide the information needed to properly consider this claim. The matters are REMANDED for the following action: 1. Ask the Veteran to complete VA Form 21-8940 and develop the TDIU claim as appropriate. If the Veteran has had intermittent or part-time work during the appeal period (i.e., from 2015 to present), then he should provide complete information as to his income for each year via an earnings statement from the Social Security Administration, tax returns, or the like. 2. Obtain any VA treatment records dated from August 2020 to present and associate them with the claims file. 3. DO NOT SCHEDULE THE FOLLOWING until updated VA records, to the extent they exist, are in the file. 4. Arrange to have the Veteran scheduled for an examination regarding his claim for service connection for an acquired psychiatric disorder. The examiner should review the record. After examining the Veteran and reviewing the record, the examiner should indicate whether the Veteran has satisfied the DSM-5 criteria for a diagnosis of PTSD. For any acquired psychiatric disorder found to be present, the examiner should express an opinion as to whether it is at least as likely as not (i.e., whether the likelihood is at least approximately balanced or nearly equal, if not higher) that it is attributable to his military service, to include the verified combat stressors. In so doing, the examiner should consider the private and VA medical evidence of record, to include the March 2016 VA examination. A complete rationale for all opinions expressed must be provided. 5. Schedule the Veteran for an examination to determine the current severity of his service-connected prostate cancer residuals. 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. 6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHELLE KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. O'Connor, 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.