Citation Nr: 0604185	
Decision Date: 02/14/06    Archive Date: 02/22/06

DOCKET NO.  04-09 510	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas



THE ISSUE

Entitlement to a compensable disability rating for benign 
pericarditis.



REPRESENTATION

Appellant represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

H. E. Costas, Associate Counsel 





INTRODUCTION

The veteran served on active duty from April 1970 to April 
1972.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Waco, Texas.

In November 2000, the veteran initiated a claim for a 
compensable disability rating for his service connected 
pericarditis.  By means of an August 2001 rating decision, 
the RO held that a compensable evaluation was not warranted.  
The veteran submitted a notice of disagreement; however, he 
did not perfect his appeal in a timely fashion.  By means of 
a letter dated April 14, 2003, the veteran was informed that 
his VA Form 9 was untimely.  Accordingly, the VA Form 9, 
received in April 2003, is construed as a reopened claim.



FINDINGS OF FACT

There is no medical evidence of record that demonstrates any 
acute or chronic pericarditis or any of its sequelae.  



CONCLUSION OF LAW

The criteria for a compensable evaluation for pericarditis 
have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 
§§ 4.1, 4.10, 4.14, 4.104, Diagnostic Code 7002 (2005).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's duties under the Veterans Claims Assistance Act of 2000 
(VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 
5126, and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), are 
assessed before the merits of the appeal.  

Of record is a June 2003 letter that notified the veteran of 
any information and evidence needed to substantiate and 
complete the claim for an increased rating.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 
16 Vet. App. 183, 187 (2002).  The letter provided the 
substantive standard to validate that type of claim.  
Additionally, VA indicated which portion of that information 
should be provided by the claimant, and which portion VA will 
try to obtain on the claimant's behalf.  In addition, the 
letter instructed the claimant to identify any additional 
evidence or information pertinent to the claim.  

The United States Court of Appeals for Veteran Claims (Court) 
in Pelegrini v. Principi, 18 Vet. App. 112 (2004), continued 
to recognize that typically a VCAA notice, as required by 38 
U.S.C.A. § 5103(a), must be provided to a claimant before the 
initial unfavorable agency of original jurisdiction (AOJ) 
decision on a claim for VA benefits.  In this case, an 
application was received in April 2003.   Thereafter, the RO 
provided notice in June 2003.  Additionally, the veteran was 
generally advised to submit any additional evidence that 
pertained to the claim.  Id. at 121.  Therefore, for the 
circumstances of this case, the requirements of Pelegrini 
regarding the timing and content of a VCAA notice have been 
fulfilled.  

Next, VCAA requires VA to assist the claimant in obtaining 
evidence necessary to substantiate a claim, 
38 C.F.R. § 3.159(c), which includes obtaining a medical 
examination when such is necessary to make a decision on the 
claim.  In terms of obtaining records, VA fulfilled its duty 
to assist by obtaining service medical records; VA treatment 
records; and VA examination reports dated in May 2003 and 
April 2004.  

Further VA examination is not necessary because the most 
recent examination report of record is sufficient and 
complete for the purposes of making a decision on the pending 
claim.  See Green (Victor) v. Derwinski, 1 Vet. App. 121, 
123-243 (1991).  

For all the foregoing reasons, VA fulfilled its duties to the 
appellant for this appeal.

Laws and Regulations

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 rating codes identify the various disabilities.  38 
C.F.R. Part 4.  Where there is a question as to which of two 
evaluations shall be applied, the 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 (2004).  Any 
reasonable doubt regarding the degree of disability is 
resolved in favor of the veteran.  38 C.F.R. § 4.3 (2005).

The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 
(1994), that compensation for service-connected injury is 
limited to those claims which show present disability, and 
where entitlement to compensation has already been 
established and an increase in the disability rating is at 
issue, the present level of disability is of primary 
importance.

Analysis

The veteran's service-connected benign pericarditis has been 
rated in accordance with the diagnostic criteria found at 38 
C.F.R. Part 4, Diagnostic Code 7002 (2005).  This diagnostic 
code is based in part on symptoms associated with and results 
of metabolic equivalency tests.  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 
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. 38 C.F.R. § 4.104 (2005).

A 10 percent rating is assigned for workload of greater than 
7 METs but not greater than 10 METs results in dyspnea, 
fatigue, angina, dizziness, or syncope; or, continuous 
medication required.  A 30 percent rating is assigned for 
workload of greater than 5 METs but not greater than 7 METs 
results in dyspnea, fatigue, angina, dizziness, or syncope; 
or, evidence of cardiac hypertrophy or dilatation on electro-
cardiogram, echocardiogram, or X-ray.  A rating of 60 percent 
shall be assigned for 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 results in 
dyspnea, fatigue, angina, dizziness, or syncope; or, left 
ventricular dysfunction with an ejection fraction of 30 to 50 
percent.  A rating of 100 percent shall be assigned for three 
months following cessation of therapy for active infection 
with cardiac involvement.  Thereafter, with documented 
pericarditis resulting in chronic congestive heart failure; 
or, workload of 3 METs or less results in dyspnea, fatigue, 
angina, dizziness, or syncope; or, left ventricular 
dysfunction with an ejection fraction of less than 30 
percent.  See 38 C.F.R. Part 4, Diagnostic Code 7002 (2005).

In light of the aforementioned criteria, the medical evidence 
of record does not warrant a compensable disability 
evaluation for the veteran's service-connected benign 
pericarditis.  The veteran was afforded VA medical 
examinations in May 2003 and April 2004; however, neither 
examiner was able to diagnose the veteran as having 
pericarditis or any associated symptomatology.  The May 2003 
examiner solely noted chronic liver disease and hepatitis C; 
the examination findings were absent any evidence of active, 
recent, or constrictive pericarditis.  The examiner further 
emphasized that he was unable to diagnose the presence of 
pericarditis, or any of the sequelae, and that he was unable 
to diagnose any disability that was attributable to the 
veteran's heart or pericardium.  The April 2004 examiner 
diagnosed the veteran as having atypical chest pain and 
noted, after reviewing the medical evidence of record, that 
it was very unlikely that the veteran ever suffered from 
acute pericarditis.  The examiner cited that the veteran was 
hospitalized for a day, and spent only two days in quarters, 
before returning to active duty; this was not the usual 
course of acute pericarditis.  Additionally, the veteran's 
numerous complaints of chest pain would not be related to a 
previous episode of pericarditis, even if that had been a 
proper diagnosis.  The examiner concurred that there was no 
evidence of acute or chronic pericarditis.  X-rays did 
demonstrate early chronic obstructive pulmonary disease and a 
MET level of 7.6.

Although the veteran did exhibit a MET level that would 
warrant a compensable evaluation, the record does not 
demonstrate that it was related to his service-connected 
benign pericarditis.  Rather, medical evidence of record 
purports that the veteran does not exhibit any symptomatology 
associated with acute or chronic pericarditis, such as to 
warrant a compensable disability rating. This is a case where 
the preponderance of the evidence is against the claim and 
the benefit of the doubt rule is inapplicable.  38 U.S.C.A. 
§ 5107(b)(West 2002); see also Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).


ORDER

A compensable disability rating for pericarditis is denied.



____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs