92 Decision Citation: BVA 92-24696 Y92 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 91-46 770 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased evaluation for hypertensive cardiovascular disease with residuals of myocardial infarction, evaluated as 60 percent disabling, for the purpose of accrued benefits. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities, for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from October 1942 until February 1946 and from August 1951 until he retired from military service in August 1970. This matter came before the Board of Veterans' Appeals (Board) from a rating decision in January 1990 of the Buffalo, New York, Regional Office (RO), of the Department of Veterans Affairs (VA). That rating action denied entitlement to an increased evaluation for hypertensive cardiovascular disease with residuals of a myocardial infarction, then rated 30 percent disabling. The notice of disagreement with that rating action was received in February 1990. A rating decision of July 1990 increased the evaluation for hypertensive cardiovascular disease with residuals of a myocardial infarction to 60 percent but denied entitlement to a total rating based on individual unemployability due to service-connected disabilities. A notice of disagreement with the July 1990 rating decision was received in September 1990. A statement of the case addressing both issues was issued later in September 1990. The substantive appeal as to both issues was received in October 1990. A death certificate on file reveals that the veteran died on January 2, 1991. A rating decision in April 1991, granted entitlement to service connection for the cause of the veteran's death. The appellant, the veteran's wife, has continued the appeal for the purpose of accrued benefits. A supplemental statement of the case was issued in May 1991. The case was received and docketed at the Board in October 1991. The case was referred to the Disabled American Veterans, the appellant's service representative, in November 1991. That service organization filed an informal hearing presentation in support of the claims in March 1992. CONTENTIONS OF APPELLANT ON APPEAL It is asserted that the veteran could not return his work as a schoolteacher after October 1981 because the physical and mental stress of gainful employment at his age of 69 could have proven lethal. It is asserted that the veteran could only walk slowly for short distances on flat ground because of his service-connected cardiovascular disorder. It is maintained that even a desk job might have caused stress leading to fatal myocardial infarction and that the service-connected cardiovascular disorder precluded everything except perhaps marginal employment. It is averred that a cardiac stress test established that the veteran had cardiac symptoms even upon mild physical exertion. It is contended that, in essence, no consideration should be given to the fact that the veteran refused invasive studies because the schedule for rating disabilities does not require the use of invasive studies which can potentially cause damage and neither prolong life nor prevent myocardial infarctions. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file at the time of his death, and for the following reasons and bases, it is the decision of the Board that the evidence preponderates against the claims for an increased evaluation for hypertensive cardiovascular disease with residuals of a myocardial infarction for the purpose of accrued benefits and for a total rating based on individual unemployability due to service-connected disabilities for the purpose of accrued benefits. FINDINGS OF FACT 1. The veteran had active service from October 1942 until February 1946 and from August 1951 until he retired from the United States Air Force in August 1970 with the rank of lieutenant colonel. 2. The death certificate reveals that the veteran died on January 2, 1991, and that the immediate cause of his death was an extension of a myocardial infarction with hypertension due to or as a consequence of coronary artery disease. 3. The evidence on file at the time of the veteran's death did not establish that prior thereto his service-connected hypertensive cardiovascular disease with residuals of a myocardial infarction caused chronic residual congestive heart failure, angina on moderate exertion or precluded more than sedentary employment. 4. Prior to his death the veteran's hypertension was well controlled and did not create such an exceptional or unusual disability picture as to render impractical the application of the regular schedular rating standards. 5. At the time of the veteran's death, he was service-connected for hypertensive cardiovascular disease with residuals of a myocardial infarction, rated 60 percent disabling; residuals of surgery for right inguinal hernia described as recurrent, rated 10 percent disabling; and noncompensable evaluations were assigned for a left inguinal herniorrhaphy scar, a bilateral high frequency hearing loss, and a vitreous floater in the right eye, resulting in a combined disability evaluation of 60 percent. 6. The veteran last worked on a full-time basis in October 1981 as a teacher and had obtained a Master's degree in Business Administration from Syracuse University. 7. At the time of the veteran's death his service-connected disabilities were not of such severity as to prevent the average person from engaging in some form of substantially gainful employment nor was he individually precluded from some form of substantially gainful employment when consideration is given to his education, circumstances of past employment, and the combined effect of his service-connected disabilities. CONCLUSIONS OF LAW 1. For the purpose of accrued benefits, the evidence on file at the time of the veteran's death did not establish that his service-connected hypertensive cardiovascular disease with residuals of myocardial infarctions warranted an evaluation in excess of 60 percent on either a schedular or extraschedular basis. 38 U.S.C.A. §§ 1155, 5121, 7104 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 7005 and 7007 (1991). 2. For the purpose of accrued benefits, the evidence on file at the time of the veteran's death did not establish that his service-connected disabilities precluded the average person nor was he individually precluded from performing substantially gainful employment. 38 U.S.C.A. §§ 1155, 5121, 7104 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claims are plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Under such circumstances we are under a duty mandated by that statute to assist the appellant in developing facts pertinent to her claims. Because the veteran died during the pendency of this appeal, the appellant, his wife, has continued the claims for the purpose of accrued benefits. Under 38 U.S.C.A. § 5121 any determination as to the entitlement to accrued benefits is limited to the evidence on file at the time of the veteran's death which, as shown by the death certificate, was on January 2, 1991. With this in mind, there is no evidence that the veteran received active and ongoing treatment from VA clinical sources. Rather, he was treated by private clinical sources. Consequently, there is no suggestion in the evidentiary record that there are any outstanding VA clinical records constructively in the possession of the VA which would be relevant and pertinent to reaching a determination of the issues on appeal. The clinical records of the veteran's hospitalization in December 1990 at the Community General Hospital of Greater Syracuse for cardiovascular disease, which reflect he had chest pain after playing volleyball and nonradiological evidence of congestive heart failure, may not be considered because they were received in June 1991, after his death. 38 C.F.R. § 3.1000(a) (1991). I. Hypertensive Cardiovascular Disease with Residuals of Myocardial Infarctions Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. A higher evaluation 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. 38 C.F.R. § 4.2 requires that the reports of examinations for rating purposes be evaluated in light of the whole reported history in order that the current rating may accurately reflect all elements of disability present. The effects of the service-connected disability upon the veteran's ordinary activity is also to be considered under 38 C.F.R. § 4.10. The criteria for the evaluation of service-connected hypertensive heart disease are found at 38 C.F.R. Part 4, Diagnostic Code 7007. That diagnostic code requires that for a 60 percent evaluation there be marked enlargement of the heart, confirmed by X-rays, or the apex beat be beyond the midclavicular line, with sustained diastolic hypertension with diastolic readings of 120 or more (which later may have been reduced) with dyspnea on exertion and the preclusion of more than light manual labor. However, because the veteran had had a myocardial infarction requiring hospitalization at the Community General Hospital of Greater Syracuse in August and September 1989, he was assigned a 60 percent evaluation under 38 C.F.R. Part 4, Diagnostic Code 7005 for arteriosclerotic heart disease. He was assigned a 100 percent schedular evaluation effective the day of admission on August 30, 1989. Under that Diagnostic Code, a 100 percent evaluation was for assignment for six months and was therefore effective until reduced to a 60 percent on April 1, 1990. The 60 percent under that Diagnostic Code encompassed a typical history of acute coronary occlusion or thrombosis (or authenticated myocardial insufficiency) or a history of substantiated repeated anginal attacks, when more than light manual labor was not feasible. To warrant a 100 percent schedular evaluation under either 38 C.F.R. Part 4, Diagnostic Code 7005 or 7007, there must have been either definite signs or residual findings of congestive heart failure or angina on moderate exertion with the preclusion of more than sedentary employment. A VA general medical examination in April 1975 reflects the veteran had no significant symptoms of hypertensive cardiovascular disease until he had an episode of chest discomfort while shoveling snow in March 1975, after he was given a prescription for a tranquilizer and nitroglycerin. The VA examiner in April 1975 felt that on the basis of exertional chest pain and electrocardiographic tracings, the veteran had rather definite changes indicative of coronary insufficiency but it was doubted that he had had a major myocardial infarction. On the other hand, Dr. Englander reported in August 1975 that an electrocardiographic tracing had disclosed a nonspecific T-wave depression which the veteran reported in a letter attached the report of the VA examination in April 1975 had been the basis of that physician's opinion that the veteran had had a myocardial infarction. Dr. Bartos also reported in August 1975 that although a normal-resting electrocardiogram had been within normal limits, a double Master's test was positive with ST segment changes after two minutes of exercise and that the veteran had arteriosclerotic heart disease with angina pectoris. On VA examination in May 1976, the veteran reported having chest pain if he climbed stairs, ran slowly, walked rapidly, or breathed cold air. He had lost only one day of work as a teacher since 1970 and the examiner felt that electrocardiographic tracings indicated that the veteran had had inferior wall myocardial infarction with minimal symptoms and was symptomatic. Statements of December 1981 and April 1982 found Dr. Purcell reflected that the veteran was unable to return to work effective October 1981 because of symptoms of ischemic heart disease with angina. It was noted that although the frequency and duration of his symptoms had been reduced with medication, he should continue to avoid strenuous and stressful situations and he concurred with the veteran's decision to retire from teaching at the end of that school year. The veteran's diastolic blood pressure readings as reflected by an March 24, 1988, outpatient notation from a military medical facility; during hospitalization in August and September 1989; and on VA examinations in November 1989 and May 1990 were 110 or below. The veteran was hospitalized at the Community General Hospital of Greater Syracuse in August and September 1989 for a myocardial infarction. Despite the precipitating factors causing anginal discomfort of which he complained on VA examination in May 1956, during that hospitalization, it was noted that he was both active and had walked an 18-hole golf course without problems. During hospitalization an electrocardiographic tracing disclosed findings consistent with anterolateral ischemia, which was a new finding when compared to a prior electrocardiographic tracings in 1975. He had an episode of tachycardia, which was possibly ventricular, but which resolved without further arrhythmia. During the veteran's August and September 1989 hospitalization he refused any invasive procedures. Although he also refused a low level cardiac stress test, he subsequently had such a stress test performed in October 1989, as related by Dr. Tucker in a statement bearing a date of "January 1989." That test disclosed probable significant, residual, coronary artery disease. That physician also noted that the veteran had refused a recommended coronary artery angiogram and on VA examination in November 1989 it was noted that the veteran had refused a recommended cardiac catheterization. In this regard, we agree with the contention that the performance invasive procedures such as cardiac catheterization or coronary angiogram do not, nor are they designed to, prolong life or prevent myocardial infarctions. This is also true of cardiac stress tests. We also acknowledge that there is on file a photostatic copy of what appears to be a portion of an article entitled "Reversing Heart Disease." However, that article deals with cardiac bypass surgery and not with diagnostic cardiology tests. We also agree with the contention that cardiac invasive procedures are not required under the Schedule for Rating Disabilities, although the results of such tests can at times be helpful in yielding a clear diagnostic picture. In any event, the veteran's past refusal to undergo invasive procedures for evaluating his service-connected cardiovascular disability is not construed to have been a refusal to cooperate with the VA in attempting to obtain a clear disability picture. On VA examination in November 1989, it was noted that the veteran had done well since his myocardial infarction in 1989. He had angina only on a cold day or when lifting. He used nitroglycerin tablets about four times a week but the examination found that his heart was not clinically enlarged nor were there any abnormalities of his heart sounds. His posterior tibial pulses were present but his dorsalis pedis pulses were not found on examination. On the other hand, although he had a left periaortic bruit and a left femoral bruit on VA examination in May 1990, his distal pulsations were normal and there was no clubbing, cyanosis or edema of the extremities, although his extremities were cool to palpation. The evidentiary record does not otherwise establish that he had any symptoms of congestive heart failure. Dr. Tucker reported in "January 1989" that the veteran had symptoms on light activity that were probably related to coronary disease and on VA examination in May 1990, the veteran reported having angina upon moderate physical exertion. Specifically, he related having angina in cold weather, walking up a hill, pushing a lawn mower or carrying garbage cans. In fact, he indicated that the only time he did not have angina was when he walked slowly and not against a wind in warm weather. On the other hand, on that examination it was noted that while walking slowly over flat ground he had been able to play nine holes of golf. He had no paroxysmal nocturnal dyspnea, cardiac palpitations, or claudication. In fact, it was noted that he had done relatively well without crescendo angina. From the foregoing, it can be seen that the evidence on file at the time of the veteran's death did not establish that he had definite signs or any chronic residual findings of congestive heart failure. Further, in light of the fact that he could walk over nine holes of a golf course, it is our determination that despite his other complaints, he did not have angina on moderate exertion. Additionally, it is contended in substance, that he had taken early retirement in October 1981 because of his cardiovascular disease. However, he retired after 20 years of employment in the military service and more than 10 years of post service employment as a teacher. We can hardly classify retirement after 30 years employment as being early. Moreover, although his service-connected cardiovascular condition undoubtedly played a part in his retirement, he is not shown to have any significant increase in symptomatology at that time, such as a myocardial infarction. Indeed, Dr. Purcell reported in April 1982 that the veteran should avoid only strenuous or stressful situations. We have considered Dr. Tucker's statement that the veteran had symptoms upon light activity but given the more recent findings on VA examination in May 1990 and the evidentiary record as a whole, it is our determination that the veteran was not precluded from more than sedentary employment due to his service-connected cardiovascular disease. After a review of the entire evidentiary record, it is also our determination that the disability picture caused by the veteran's service-connected cardiovascular disease was not so exceptional or unusual as to render impractical the application of the regular schedular standards. There is no evidence that the veteran's cardiovascular disorder necessitated frequent hospitalization. Consequently, an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) is not warranted for the purpose of accrued benefits. II. Entitlement to a Total Rating based on Individual Unemployability due to Service-Connected Disabilities for the Purpose of Accrued Benefits Total disability ratings for compensation may be assigned where the schedular rating for the service-connected disability or disabilities is less than 100 percent when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.340, 3.341, 4.16. In determining entitlement to a total rating, only service-connected disabilities may be considered. In other words, if the veteran is unemployable, this alone is insufficient. It must be shown that the unemployability is due solely to service-connected disabilities and not due to nonservice-connected disability or disabilities or to the combined impact of both service-connected and nonservice-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Further, unemployability associated with or due to advancing age or intercurrent disability is not a basis for a total rating. 38 C.F.R. § 4.19. Neither the United States Code nor the Code of Federal Regulations offers a definition for "substantially gainful employment" or "substantially gainful occupation." The VA Adjudication Manual M21-1, Section 50.55(a) defines "substantially gainful employment" as "...that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." This suggests a living wage. Ferraro v. Derwinski, 1 Vet.App. 326, 332 (1991). The term "unemployability" as used in VA regulations governing total disability ratings for compensations purposes is synonymous with the inability to secure and follow a substantially gainful occupation. Further, VA regulations governing total disability ratings provide that all veterans who, in light of their individual circumstances but without regard to age, are unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities shall be rated totally disabled, without regard to whether an average person would be rendered unemployable under the same circumstances. O.G.C. 75-91, 57 Fed. Reg. 2317 (1992). Marginal employment shall not be considered as substantially gainful employment and a determination with respect to what constitutes marginal employment will be on a facts found basis and includes, but is not limited to, employment in a protected environment such as a family business or sheltered workshop. Consideration shall be given in all claims to the nature of the employment and the reason for termination thereof. 38 C.F.R. § 4.16(a). Also for consideration in determining entitlement to a total rating is the veteran's employment history, as well as educational and vocational attainment. 38 C.F.R. § 4.16(b). Based on statute, the governing regulations provide a mix of objective and subjective criteria for determining unemployability. Hatlestead v. Derwinski, U.S. Vet.App. No. 90-103, slip op. at 5 (July 8, 1992). With respect to the objective criteria, we observe that the veteran prior to his death did have a 60 percent evaluation for service-connected hypertensive cardiovascular disease with residuals of myocardial infarctions but did not have sufficient additional service-connected disabilities to bring the combined disability rating to 70 percent or more, inasmuch as the only other service-connected disability which was compensable was residuals of what was described as a recurrent right inguinal hernia, rated 10 percent disabling. 38 C.F.R. § 4.16(a). The veteran's application for increased compensation based on unemployability of April 1990 reflects, as otherwise documented by the evidentiary record, that he was last employed in October 1981 as a teacher. He was very well educated and had a Master's degree in Business Administration from Syracuse University. On VA examination in May 1990, it was indicated that he had taught law and business management. Although his retirement in 1981 has been described as "early" retirement, we again note that he had retired from more than 20 years of active military service and had been employed since 1970 as a teacher, for a total of more than 30 years of employment. Moreover, his retirement in 1981 was not precipitated by myocardial infarction, although his service-connected cardiovascular disease undoubtedly played some role in his retirement. The severity of the service-connected cardiovascular disease had been discussed above. With respect to the veteran's service-connected vitreous floater of the right eye, it was noted on examination for retirement from service in 1970 that prescription lenses corrected his defective distant and near visual acuity due to a refractive error. Service connection is not in effect for a refractive error of the eyes, inasmuch as they are not the proper subjects of a grant of service connection. 38 C.F.R. § 3.303(c). The most recent evidence concerning the veteran's visual acuity are the VA general medical and ophthalmological examinations of December 1970. Combined, these disclose that the veteran reportedly saw a black spot in his right eye. However, both eyes had uncorrected diminished visual acuity of 20/200 correctable in each eye to 20/20. Examination disclosed a vitreous floater in the media of the right eye. Given the fact that he had correctable visual acuity in each eye, we can only conclude that the bilateral diminished visual acuity was due solely to the nonservice-connected refractive error and that the vitreous floater in the right eye produced neither diminished visual acuity nor impairment of the field of vision of the right eye. Additionally, VA examinations in December 1970 disclosed that the veteran had some dullness and possible retraction of the tympanic membrane of the left ear but he had no gross hearing loss to ordinary conversational voice. Speech audiometric testing revealed a speech reception threshold of minus 4 decibels in the right ear and minus 6 decibels in the left ear with discrimination ability of 96 percent in the right ear and 100 percent in the left ear. Pure tone audiometric testing revealed no decibel losses at 500, 1,000, or 2,000 hertz in each ear. He had a 40-decibel threshold level in each ear at 4,000 hertz. No audiometric testing was conducted at 3,000 hertz which is required for a rating under the schedular rating criteria which became effective December 18, 1987. Given the fact that there were no signs, symptoms or complaints of hearing loss after 1970, we can only conclude that this service-connected hearing loss was not productive of disability. In June 1943, during the veteran's first period of service, he had surgery for bilateral inguinal hernias. The service clinical records disclose that he had an infection in a portion of the right inguinal herniorrhaphy incision. It is uncontested that the postoperative left inguinal herniorrhaphy scar is asymptomatic and that there has been no recurrence of the left inguinal hernia. However, VA general medical and surgical examinations in December 1970, cumulatively, reveals that the veteran did not actually have a recurrence of the right inguinal hernia, but, rather, had a residual incisional hernia in the upper portion of the right inguinal herniorrhaphy scar. The incisional hernia was reducible and he wore an athletic support for relief of some symptoms which occurred with straining or heavy lifting. Although he complained of a hernia condition on VA examination in April 1975, he did not relate having had any treatment for his inguinal herniorrhaphies or residuals thereof but it was noted that he had a nonservice-connected small hiatal hernia which was apparently corrected by surgery at some point because a nonservice-connected postoperative umbilical herniorrhaphy scar was found on VA examination in November 1989. Inasmuch as the incisional hernia within the site of the right inguinal herniorrhaphy scar was readily reducible and well supported by a belt or truss, it was appropriately assigned a 10 percent disability evaluation under 38 C.F.R. Part 4, Diagnostic Code 7338. However, even when the residuals of the right inguinal herniorrhaphy considered together with the service-connected hypertensive cardiovascular disease with residuals of myocardial infarction, we must conclude that in light of his extensive work history and education he was nevertheless well suited for sedentary employment and was not individually unemployable due to his service-connected disabilities nor would those disabilities have rendered an average person incapable of substantially gainful employment. Accordingly, entitlement to a total rating based on individual unemployability due to service-connected disabilities for the purposes of accrued benefits is not warranted. ORDER For the purpose of accrued benefits, an increased evaluation for hypertensive cardiovascular disease with residuals of myocardial infarctions and a total rating based on individual unemployability due to service-connected disabilities are denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 GARY L. GICK H. STERLING, M.D. (MEMBER TEMPORARILY ABSENT) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.