Citation Nr: 18132208
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-41 389
DATE:	September 6, 2018
ORDER
Entitlement to a rating in excess of 60 percent for ischemic heart disease from to September 1, 2011 to August 13, 2015 is denied.
Entitlement to a compensable rating for residuals scars status post coronary artery bypass graft is denied.

REMANDED
Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded.
Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded.
FINDINGS OF FACT
1. For the appeal period from September 1, 2011 to August 13, 2015, the Veteran’s ischemic heart disease is characterized by a workload of greater than 3 metabolic equivalent (METs) that results in dyspnea, fatigue, angina, dizziness, or syncope without chronic congestive heart failure, a workload of three METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope or left ventricular dysfunction with an ejection fraction of less than 30 percent
2. For the entire period on appeal, the Veteran’s residuals scars status post coronary artery bypass graft manifested as superficial scars of the chest and leg that were not deep, non-linear, unstable or painful.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 60 percent for the Veteran’s ischemic heart disease for the period from September 1, 2011 to August 13, 2015 were not met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.102, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7005 (2017).
2. The criteria for a compensable rating for residuals scars status post coronary artery bypass graft were not met.  38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.118, DCs 7804-05 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active from November 1965 to November 1968.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2011 and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.
The Board notes that the issue of entitlement to a TDIU was not certified for appeal. However, when evidence of unemployability is submitted during the course of an appeal from an assigned rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In this present case, in a March 2016 submission, the Veteran’s attorney argued that he was unable to work due to his service connected disabilities.  Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran’s increased rating claims for ischemic heart disease and PTSD, it has been listed on the first page of this decision.
Increased Rating
Disability evaluations are determined by evaluating 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, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2017).
In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods.
1. Ischemic Heart Disease
The Veteran’s ischemic heart disease has been rated as 60 percent disabling from February 15, 2012 to August 13, 2015.  It has been rated as 100 percent disabling from June 29, 20011 to February 14, 2012 and beginning on August 14, 2015.  The Veteran asserts that a 100 percent rating is warranted for the entire appeal period.  
Under Diagnostic Code 7005, a 60 percent rating is warranted where there is evidence of more than one episode of acute congestive heart failure in the past year; or, workload of greater than 3 METs but not greater than 5 METs, resulting 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 workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent.
Following a review of the record, the Board finds that a rating in excess of 60 percent for ischemic heart disease is not warranted for the period from February 15, 2012 to August 13, 2015.  The February 15, 2012 VA ischemic heart disease Disability Benefits Questionnaire (DBQ) report found that the Veteran did not suffer from congestive heart failure and that his left ventricular ejection fraction was 31 percent.  The examiner noted that a diagnostic stress test was not performed as it was not part of the Veteran’s treatment plan but found that the Veteran’s METs were greater than three but less than five with symptoms of dyspnea, fatigue and dizziness based on his responses.  The record does not show, and the Veteran has not alleged, chronic congestive heart failure, a workload of three METs or less resulting in dyspnea, fatigue, angina, dizziness or syncope or left ventricular dysfunction with an ejection fraction of less than 30 percent.  Therefore, a higher rating is not warranted. 



2.  Residual Scars
The rating criteria for evaluating scars are set forth at 38 C.F.R. § 4.118, DCs 7800-7805.  DC 7800 pertains to scars of the head, face, or neck and is therefore not for application in this claim.
Pursuant to DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. 
DC 7802 pertains to burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. 
DC 7804 pertains to unstable or painful scars. One or two scars that are unstable or painful are rated at 10 percent disabling. Note (1) to DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804. 
DC 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.
At the August 2011 VA ischemic heart disease examination, the examiner noted that the Veteran had a scar on the mid-sternum that measured 21 centimeters by 0.5 centimeters.  It was found to be superficial but not painful.  There was also no limitation of motion or function, nor inflammation, edema, or keloid formation found.  There were two other scars noted on the left medial thigh and they both measured 3 centimeters by .5 centimeters each.  Neither scar was painful and both were superficial.  There was again no limitation of motion or function, nor inflammation, edema, or keloid formation.  
The February 2012 and August 2015 VA ischemic heart disease examiners indicated that the Veteran had scars, but none were painful and/or unstable, and the total area of all the scars was not 39 square centimeters or greater.  
Following a review of the record, the Board finds that a compensable rating for residuals scars associated with ischemic heart disease were not warranted.  The Veteran’s scars are superficial and linear.  They do not cover an area of at least 929 square centimeters, are not unstable and are not painful.  Moreover, the Veteran’s scars are not deep and do not cover an area of at least 39 square centimeters.   Therefore, the preponderance of the evidence is against the claim for a compensable rating for residuals scars status post coronary artery bypass graft.  
REASONS FOR REMAND
1. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is remanded.
2. Entitlement to a TDIU is remanded.
The Veteran was last afforded a VA PTSD examination in August 2015.  During that examination, the Veteran’s thought processes were found to be goal oriented with no derailment, loose or clanging associations, thought blocking or neologisms.  In an April 2017 statement, the Veteran’s wife indicates that his thought processes have worsened, that he says that things that don’t make sense and that it seems to take him longer to get his thoughts into sentences.  She wrote that it uses the wrong words sometimes, that it was hard to understand what he was trying to say, and that he sometimes will start his sentence in the middle of a thought.  She also wrote that the Veteran’s ability to sleep has worsened, that his ability to cope with stressful situations has worsened and that he gets upset easily.  Therefore, pursuant to the VA’s duty to assist, an additional examination shall be provided to determine the current severity of the Veteran’s PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).
Since the outcome of the claim for a higher initial rating for PTSD could affect the Veteran’s claim for TDIU, it is inextricably intertwined with the higher rating claim and must be remanded, too. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). 
On remand, the Veteran should be asked to furnish, or to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his service connected PTSD. Additionally, given the time that will pass during the processing of this remand, updated VA treatment records should be associated with the record.
The matters are REMANDED for the following action:
1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the remanded claims, to specifically include those from any private treatment provider who has treated him for his service-connected PTSD. After obtaining any necessary authorization from the Veteran, all outstanding records, to include updated VA treatment records.
For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in his possession.
For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. 5103A(b)(2) and 38 C.F.R. 3.159(e).
2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected PTSD.  The examiner must perform psychometric testing and discuss the results in the examination report.  The examiner should also review the prior VA examination reports.  All pertinent findings and functional impairment, to include severity, must be reported in detail.
3.  Then, readjudicate the claims. If the benefits sought remain denied, issue a supplemental statement of the case (SSOC) and allow the applicable time for a response.
 
Kristy L. Zadora
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Daniels, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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