Citation Nr: 0002172 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 97-22 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation for hypertension with angina and cardiomyopathy, currently evaluated as 30 percent disabling. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney ATTORNEY FOR THE BOARD Ralph G. Stiehm, Counsel INTRODUCTION The veteran reportedly had over 18 years of active miliary service ending in June 1967 and subsequent service with the reserves ending in November 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In June 1998, the Board remanded this case for further development. The RO completed that development, whereupon this case is once again before the Board. FINDINGS OF FACT 1. The veteran's service-connected hypertension with angina and cardiomyopathy is productive of fatigue associated with a work load of 7 METs; left ventricular function is reportedly normal, and this disability does not render ordinary manual labor unfeasible. 2. Service connection has been established for the following disabilities: hypertension with angina and cardiomyopathy, currently rated as 30 percent disabling; tinnitus, current rated as 10 percent disabling; and, hearing loss, currently rated as 20 percent disabling. 3. The veteran's service connected disabilities do not preclude all forms of substantially gainful employment which are consistent with the veteran's educational background and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 30 percent for hypertension with angina and cardiomyopathy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 38 C.F.R. § 4.104, Diagnostic Code 7005 (1999 & 1997). 2. The criteria for entitlement to a total disability rating based upon individual unemployability due to service- connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 1997, the veteran underwent a VA examination during which the veteran complained of atypical chest pains, unassociated with anxiety, stress, exertion, or shortness or breath. Although the veteran complained of being able to walk only two blocks, the examiner observed that there was no evidence of ischemic peripheral vascular disease or any symptoms of congestive heart failure. Cardiovascular examination revealed no abnormality, and the examiner's impression was that of hypertension, under treatment, and a previous diagnosis of cardiomyopathy and angina pectoris with atypical chest pains. In August 1998, the veteran underwent an exercise tolerance test. Although that test resulted in a maximum of 4 MET, the examination, which had to be stopped as a result of leg fatigue, apparently was inadequate. However, in September 1998, the veteran underwent a VA examination in connection with which an exercise test with thallium was administered. That test reportedly involved a workload of 7 METS exercise over 7 minutes with a moderate sized reversible defect in the basal inferolateral wall. A report of that examination also reflects that an earlier echocardiogram performed that same month revealed normal left ventricular function, and that although that echocardiogram revealed mild left ventricular hypertrophy, an EKG revealed no ventricular hypertrophy. The examiner indicated that the veteran had no congestive heart failure, and impressions included essential hypertensive disease with LV hypertrophy and coronary artery disease and angina pectoris (Class II Canadian Cardiovascular Society). The examiner, who apparently produced two reports, indicated in one report that the disability secondary to cardiovascular disease was moderate and in another report that the veteran was only mildly compromised by angina. In November 1998, the veteran underwent a social work assessment. The veteran indicated that he last worked as a car salesman, but that he left that employment in response to lower extremity pain and fatigue. The veteran's complaints included impaired hearing, pain in his low back and legs, and chest pain three times a week. The examiner indicated that although the symptoms the veteran described might cause him discomfort, he appeared able to function very well on his own. According to that examiner, the most recent cardiac examination revealed mild compromise as a result of angina, and the veteran's hypertension was well controlled with medication. The examiner concluded that although there might be some types of employment activity that the veteran was unable to perform, he did not appear to be unemployable as a result of his service-connected disabilities. I. Increased Rating The veteran seeks an increased evaluation for hypertension with angina and cardiomyopathy. Service connection was established for hypertension in an August 1972 rating decision that noted a history of hypertension in service. That veteran's disability was evaluated as noncompensable at that time under diagnostic code 7101. In June 1983, the evaluation was increased to 10 percent, based upon information contained in records of treatment from 1980 to 1983. In August 1995, the RO, observing that a VA examination revealed hypertension was complicated by angina and cardiomyopathy, expanded the veteran's disability to include angina and cardiomyopathy and evaluated the veteran's disability as 30 percent disabling under diagnostic code 7005. The evaluation of the veteran's disability has since remained unchanged. However, the Board takes note of the fact that certain portions of 38 C.F.R. Part 4 pertaining to the rating criteria for disabilities involving the cardiovascular system have recently been changed. Specifically, on December 11, 1997, the VA published a final rule, effective January 12, 1998, to amend the section of the Schedule for Rating Disabilities dealing with cardiovascular disabilities. 62 FR 65207, Dec. 11, 1997. Where the law or regulations governing a claim change while the claim is pending, the version most favorable to the veteran applies, absent congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312- 13 (1991). Under the criteria in effect prior to the regulatory changes in question, a 30 percent evaluation for arteriosclerotic heart disease is warranted following a typical coronary occlusion or thrombosis or with a history of substantiated anginal attack, ordinary manual labor feasible. A 60 percent evaluation is warranted, following typical history of acute coronary occlusion or thrombosis, or with history of substantiated repeated anginal attacks, more than light manual labor not feasible. 38 C.F.R. § 4.104, Diagnostic Code 7005 (1997). Under the criteria currently in effect, a 30 percent evaluation is warranted if a work load of 5 METs, but not greater than 7 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. A 60 percent evaluation is warranted, if there is more than one episode of acute congestive heart failure in the past year; if a workload of greater than 3 METs, but not greater than 5 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. Examination of the veteran has revealed a disability that is no more than moderate in its effect upon the veteran's ability to function. Although the veteran has complained of not being able to walk long distances, this apparently is associated with the veteran's lower extremity complaints, and the results of various examinations does not give reason to believe that the veteran's complaints in this respect have their root in the veteran's service-connected cardiovascular disorder. This evidence suggests ordinary manual labor is feasible. In addition, the most recent VA examination revealed a 7 MET workload capacity resulted in fatigue. Although an earlier examination apparently resulted in only a 4 MET workload capacity, an entry which addresses that result reflects that the veteran was limited, not by his cardiovascular disorder, but by his lower extremity complaint. The veteran does not have congestive heart failure, and there is no left ventricular dysfunction. A higher evaluation, therefore, is not warranted under either the new or old criteria. The Board has considered the possibility of a higher rating under the criteria applicable to hypertension. However, under the criteria in effect prior to the changes in regulations pertaining to evaluations for a cardiovascular disorder, a 20 percent evaluation contemplated a diastolic pressure of 110 or more with definite symptoms. A 40 percent evaluation contemplated a diastolic pressure of 120 or more with and moderately severe symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). Under the criteria currently in effect, a 20 percent evaluation contemplates a diastolic pressure that is predominantly 110 or a systolic pressure that is predominantly 200 or more. A 40 percent evaluation contemplates a diastolic pressure of 120 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1999). Examination of the veteran has revealed blood pressure readings probably insufficient to warrant even a 20 percent evaluation, and certainly not sufficient to warrant a higher evaluation. For instance, a March 1997 examination revealed blood pressure readings of 145/76, 155/75, and 144/86. Although examination in August 1998 revealed a maximum blood pressure of 218/63 and a September 1998 examination revealed a maximum blood pressure of 214/74, another September 1998 examination revealed a blood pressure of 158/99. The veteran's predominant systolic pressure appears to be something less than 200. However, in either event the veteran's diastolic pressure does not approach 110, let 120, as is necessary for a higher evaluation under both the old and the new criteria. A higher evaluation for the veteran's disability, therefore, is unwarranted. II. Individual Unemployability In order to establish service connection for a total rating based upon individual unemployability due to service- connected disabilities, there must be impairment which prevents the average person to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned when there are two or more disabilities, at least one disability is ratable at 40 percent or more, and any additional disabilities result in a combined rating of 70 percent or more, and the disabled person is unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service- connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). In the present case, the veteran has three service-connected disabilities: hypertension with angina and cardiomyopathy, currently rated as 30 percent disabling; tinnitus, currently rated as 10 percent disabling; and, hearing loss, currently rated as 20 percent disabling. The veteran's combined service-connected disability rating is 50 percent. It is clear that the requirements of 38 C.F.R. § 4.16(a) have not been met. Moreover, based on a review of the evidence, the Board is unable to find any basis for a finding of unemployability under 38 C.F.R. § 4.16(b). Quite simply, the evidence associated with the claims file reveals that the veteran's service-connected disabilities do not preclude substantially gainful employment. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The veteran has experience as a car salesman and apparently left that employment based upon symptoms associated with a non-service-connected disability. Significantly, a November 1998 social work assessment resulted in an opinion that the veteran, in essence, was not precluded from pursuing gainful employment by his service connected disabilities. The clinical evidence shows that the veteran's cardiovascular disorder is no more than moderately disabling. That disorder combined with the veteran's, hearing loss and tinnitus, does not preclude substantially gainful employment. The Board finds that the clear preponderance of the evidence is against entitlement to a total rating based on individual unemployability due to service-connected disability. Consideration of the evidence in view of the provisions of 38 U.S.C.A. § 5107(b) does not otherwise provide a basis for a favorable determination. ORDER The appeal is denied as to both issues. ALAN S. PEEVY Member, Board of Veterans' Appeals