Citation Nr: 0606467 Decision Date: 03/07/06 Archive Date: 03/14/06 DOCKET NO. 04-07 168A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial rating for vasovagal syncope, evaluated non-compensable prior to January 30, 2003 and 10 percent thereafter. ATTORNEY FOR THE BOARD D. Powers, Associate Counsel INTRODUCTION The veteran had active service from April 1981 through April 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In that decision, the RO granted service connection for vasovagal syncope and assigned an initial non-compensable evaluation, effective May 1, 2001. The veteran appealed the initial rating assigned. In a rating decision dated October 2004, the RO granted a 10 percent rating effective January 30, 2003. The Board has rephrased the issue listed on the title page to reflect that this is an initial rating claim. See Fenderson v. West, 12 Vet. App. 119 (1999) (Where an appeal stems from an initial rating, VA must frame and consider the issue as to whether separate or "staged" ratings may be assigned for any or all of the retroactive period from the effective date of the grant of service connection in addition to a prospective rating.). FINDING OF FACT Since discharge from service, the veteran's vasovagal syncope has been manifested by syncopal episodes occurring at a rate of about four times during a twelve month period. CONCLUSION OF LAW The criteria for an initial 20 percent rating, but no higher, for vasovagal syncope have been met since May 1, 2001. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8108, 8911 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION I. Vasovagal Syncope The veteran claims entitlement to a higher initial evaluation for his service connected vasovagal syncope. Historically, he served as a helicopter pilot during service. Beginning in 1989, he had several instances of brief syncopal episodes with neurology and cardiology consultations resulting in a diagnosis of vasovagal syncope. He was placed on beta blocker medication for a short time period. He was retired from service in April 2001. The veteran filed his original application for service connection for vasovagal syncope in July 2001. In a December 2001 VA examination, he reported his in-service history of syncopal episodes initially treated with beta blockers. However, he discontinued use of the medication because it precluded him from flying status. Thereafter, he reported 2 episodes of near syncope manifested by a fluttering sensation in his throat with a slowing down of his pulse. He lied down to let the symptoms pass and usually became diaphoretic in the process. Following the examination, the examiner provided the following impression: IMPRESSION: There are many causes of symptomatic bradycardia. This patient does not have a neurologic problem, he has a cardiac problem. He is still symptomatic but now working since onset of the symptoms and aborts the episodes of syncope by lying down. Should he have more of the episodes under circumstances in which he would not lie down, he would be likely to have another syncopal episode. In a February 2002 VA heart examination, the veteran reported a history of syncopal episodes in September 1998 and February 1999 wherein he was placed on beta blockers. After he discontinued use of beta blockers in December 2000, he had an instance of syncope in October 2001 and then two other episodes of near syncope that resolved with lying down. His physical examination confirmed a diagnosis of vasovagal reaction causing syncopal episodes. In April 2002, the RO granted service connection for vasovagal syncope and assigned a non-compensable rating, effective May 1, 2001. In a statement received in November 2002, the veteran reported loss of his pilot's license due to his diagnosis of vasovagal syncope. He indicated that he continued to suffer from episodes of passing out that lasted several seconds in duration and occurred approximately 3-4 times per year. In April 2004, the veteran submitted a medical statement from Kerry Schwartz, M.D., that stated as follows: [The veteran] has been my patient since December 2002. After a thorough examination and testing, I have determined that [the veteran] has neurocardiogenic syncope. I have prescribed Norpace X1 and Toprol to control the syncopal episodes he continues to have at a rate of 3-4 episodes per year. This medication regimen has controlled the severity of the episodes but not the rate of occurrence. It is my opinion that [the veteran] will have to stay on some form of medication for the remainder of his life to control these episodes as there is no cure for this condition. Additionally, it is my opinion that [the veteran] should not be employed in positions that may endanger the lives of others. He should not be employed in positions such as commercial pilot, commercial or school bus driver, or heavy construction equipment operator to reduce the potential for personal injury and damage to property. The clinical records from Dr. Kerry record a history of two near fainting episodes in January 2003, one episode in May 2003, and another episode in August 2004. By means of a rating decision dated October 2004, the RO increased the rating to 10 percent based on private medical evidence submitted by the veteran and assigned an effective date of January 30, 2003. In October 2005, the veteran underwent a VA examination for neurological disorders at which time it was reported that since he was put on Toprol, he has had episodes of syncope that occurred from one to two times every six months and that he had had 4 episodes in the last 12 months. The episodes were described as lasting from four to ten seconds. The diagnosis was neurogenic syncope which the examiner characterized as mild. 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 (2005). Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2005). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected but also the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis or for those not fully supported by clinical and laboratory findings. Ratings will not be assigned to organic diseases and injuries by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2005). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2005). Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The determination of whether an increased evaluation is warranted is to be based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history. In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board considers all the evidence of record but only reports the most probative evidence regarding the current degree of impairment which consists of records generated in proximity to and since the claims on appeal. See Francisco v. Brown, 7 Vet. App. 55 (1994). VA has defined the competency of evidence, pursuant to 38 C.F.R. § 3.159(a), as follows: (1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. In reviewing the disability on appeal together with the provisions of the Rating Schedule, it is determined that vasovagal syncope is most appropriately rated as analogous to epilepsy, petit mal. 38 C.F.R. § 4.124a, Diagnostic Code 8911 (2005). The rating criteria for seizure disorders, including petit mal epilepsy, provide a 10 percent rating for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted for 1 major seizure during the preceding 2 years or 2 minor seizures during the preceding 6 months. A 40 percent rating is assigned for 1 major seizure during the preceding 6 months or 2 major seizures, or 5 to 8 minor seizures weekly, during the preceding year. A 60 percent rating is warranted for 3 major seizures, or 9 to 10 minor seizures weekly, during the preceding year. An 80 percent rating is assigned for 4 major seizures, or more than 10 minor seizures weekly, during the preceding year. A 100 percent rating is warranted for 12 major seizures during the preceding year. 38 C.F.R. § 4.124a, Diagnostic Codes 8910, 8911 (2005). In order to warrant a rating for epilepsy, the seizures must be witnessed or verified at some time by a physician. As to frequency, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. 38 C.F.R. § 4.121 (2005). A major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head, or sudden jerking movements of the arms, trunk, or head, or sudden loss of postural control. In the presence of major and minor seizures, the rating will be based on the predominant type of seizure. 38 C.F.R. § 4.124a (2005). Applying the facts in this case to the criteria set forth above, the Board finds that the criteria for a 20 percent rating for vasovagal syncope have been met since the effective date of the award of service connection. The evidence shows that the veteran has been on medication for his disability since January 2003. During an October 2005 VA exam, the veteran complained of syncopal episodes occurring 1 to 2 times every 6 months each lasting for 4 to 10 seconds. Thereafter, he reported his syncopal episodes as occurring 3- 4 times per year. Dr. Kerry has reviewed his reported symptoms and diagnosed his symptoms as neurocardiogenic syncope. Dr. Kerry further reported the occurrence of these episodes 3-4 times per year. Although he was not placed on medication until January 2003, the medication only controlled the severity of the syncopal episodes but did not affect the frequency. The Board finds that the symptoms summarized above more nearly approximate the criteria for a 20 percent rating for vasovagal syncope that has been present since the effective date of the award. The Board further finds, however, that the criteria for a 40 percent rating have not been met because it has been neither shown nor contended that the veteran has experienced 1 major seizure in the last 6 months, 2 in the last year, or an average of 5 to 8 seizures weekly. In so holding, the Board has deemed the veteran as both competent and credible to report his syncopal episodes and relied upon his descriptions to assign the 20 percent rating effective to the date of claim. There is no lay or medical evidence to warrant a higher rating. The benefit of the doubt rule has been applied in favor of the veteran in assigning the initial 20 percent rating. 38 U.S.C.A. § 5107(b) (West 2002). II. VCAA The Board notes that the claims folder has been carefully reviewed to ensure compliance with the provisions of the Veterans Claims Assistance Act (VCAA) of 2000. 106 P.L. 475, 114 Stat. 2096 (2000). In pertinent part, this law defines VA's notice and duty to assist requirements in the development of certain claims for benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103(a) and 5107 (West 2002). The Court of Appeals for Veterans Claims (CAVC) has emphasized that the provisions of the VCAA impose new notice requirements on the part of VA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA has a duty to notify a claimant (and his representative) of any information, whether medical or lay evidence or otherwise, not previously provided to VA that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2002). As part of that notice, VA shall indicate which portion of that information and evidence, if any, is to be provided by the claimant, and which portion, if any, VA will attempt to obtain on behalf of the claimant. Id. The CAVC's decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II) held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. This "fourth element" of the notice requirement is found at 38 C.F.R. § 3.159(b)(1). The Pelegrini II Court also held that the language of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) requires that a VCAA notice be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. The Board notes that the veteran was provided a letter on September 6, 2001 advising him of the relative duties on the part of himself and VA in developing his claim, the types of evidence and/or information necessary to establish entitlement to service connection, what development VA was conducting on his part, and what information and/or evidence was required from the veteran. See 38 U.S.C.A. § 5103 (West 2002). The letter also advised him to either send in the evidence needed or to advise VA of any additional information or evidence that VA could obtain for him. See 38 C.F.R. § 3.159(b) (2005). In this case, the veteran filed a notice of disagreement (NOD) with respect to the initial rating assigned. In February 2004, the RO issued the veteran a Statement of the Case (SOC) which advised him of the Reasons and Bases for its denial and the schedular and extraschedular criteria for establishing entitlement to a higher initial rating. The SOC also provided the veteran with the complete text of 38 C.F.R. § 3.159(b). VA's General Counsel has concluded that, where a section 5103 notice was provided for the initial claim for benefits, an additional section 5103 notice was not required when the appeal stemmed from an NOD with respect to a downstream element of the claim. VAOPGCPREC 8-2003 (Dec. 22, 2003). The Board is also bound to follow this precedent opinion. 38 U.S.C.A. § 7104(c) (West 2002). Additionally, the veteran was also provided another letter on January 20, 2005 which substantially complied with the VCAA notice requirements. Specifically, the letter told the veteran what was necessary to substantiate his claim and notified the veteran of his and VA's respective responsibilities for obtaining information and evidence under the VCAA. More specifically, the document explained that VA would help him get such things as medical records or records from other Federal agencies, but he was responsible for providing any necessary releases and enough information about the records so that VA could request them from the person or agency that had them. The January 2005 letter also stated the following: "If you have any evidence in your possession that pertains to your claim, please send it to us." There is no indication or allegation that any aspect of the VCAA notice requirements that may have been issued post- adjudicatory has prevented him from submitting any pertinent evidence and/or information necessary to substantiate his claim. VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(c) (2005). The RO has obtained all available private evidence and/or information and available service medical records that include his available induction and separation examinations. Thus, the RO has obtained all relevant evidence and/or information identified by the veteran as relevant to his claim on appeal. Thus, on appellate review, the Board sees no areas in which further development is needed. The RO has substantially complied with the requirements of the VCAA, and there would be no benefit in developing this case further. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (stating that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). Under these circumstances, adjudication of this appeal, without referral to the RO for further consideration of the claim under the VCAA, poses no prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); VAOPGCPREC 16-92 (July 24, 1992). ORDER Entitlement to 20 percent initial evaluation, but no higher, for vasovagal syncope is granted, effective May 1, 2001. ____________________________________________ C.W. Symanski Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs