Citation Nr: 0731110 Decision Date: 10/03/07 Archive Date: 10/16/07 DOCKET NO. 05-07 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for tachycardia. 2. Entitlement to a compensable initial disability rating for recurrent chalazions of the right eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from January 1983 to July 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In June 2007, the veteran testified at a travel board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with her claims files. During her June 2007 hearing, the veteran submitted additional evidence and waived initial RO review of the evidence. See 38 C.F.R. § 20.1304 (2006). This evidence will be considered by the Board in adjudicating this appeal. See 38 C.F.R. § 20.1304 (2006). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The veteran's tachycardia is manifested by episodes of increased heart rate, palpitations, accompanied on occasion by shortness of breath, dizziness, and fatigue and alleviated by breathing techniques and without use of medication. There is no ECG or Holter monitor evidence of 4 or more episodes of arrhythmia within a given year. 3. The veteran's recurrent chalazion of the right eye has been chronically active, requiring treatment including intermittent surgical excision and drainage; it has not impaired her vision in any way or caused disfiguring scars. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for tachycardia have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.104, Diagnostic Codes 7010, 7011, 7015 (2007). 2. The criteria for a 10 percent initial disability rating, but no greater, for recurrent chalazion of the right eye have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.75, Diagnostic Code 6018 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. The Board must ensure that these procedural duties have been met before reaching the merits of the appeal. In reviewing the veteran's claims of entitlement to increased disability rating and initial increased disability rating, the Board observes that the RO issued VCAA notices to the veteran in August 2003 and May 2006, which informed her of the evidence generally needed to support claims of entitlement to service connection and increased disability ratings; what actions she needed to undertake; the need to submit any evidence in her possession that pertained to the claims; and how the VA would assist her in developing her claims. The May 2006 letter informed her of the evidence needed for the assignment of evaluations and effective dates for both initial awards of service connection and for increased disability ratings. Although the May 2006 VCAA notice letter was provided subsequent to the rating decision, it and subsequent readjudication of the claims have cured any defect with regard to the time of notice. Cf. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The VA has secured or attempted to secure all relevant documentation to the extent possible. VA medical examination reports and VA and private treatment records are of record and were reviewed by both the RO and the Board in connection with the veteran's claims. The veteran was afforded a personal hearing at the RO in June 2007 and submitted the additional evidence at that time. There remains no issue as to the substantial completeness of the veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2006). Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, there is a distinction between an appeal of an original or initial rating and a claim for an increased rating, and this distinction is important with regard to determining the evidence that can be used to decide whether the original rating on appeal was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). For example, the rule articulated in Francisco v. Brown--that the present level of the veteran's disability is the primary concern in an claim for an increased rating and that past medical reports should not be given precedence over current medical findings--does not apply to the assignment of an initial rating for a disability when service connection is awarded for that disability. Fenderson, 12 Vet. App. at 126; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Instead, where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous . . . ." Fenderson, 12 Vet. App. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. Tachycardia The veteran contends that her service-connected tachycardia is more severe than the current 10 percent rating reflects. Her service-connected tachycardia, diagnosed as supraventricular arrhythmia (SVT), is currently rated under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7010. Pursuant to Diagnostic Code 7010 a 10 percent rating is assigned for permanent atrial fibrillation (lone atrial fibrillation), or 1 to 4 episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by electrocardiogram (ECG) or Holter monitor. A 30 percent evaluation requires paroxysmal atrial fibrillation or other supraventricular tachycardia with more than 4 episodes per year documented by ECG or Holter monitor. 38 C.F.R. § 4.104. Diagnostic Code 7011 provides a 10 percent for sustained ventricular arrhythmias when a workload of greater than 7 METs (metabolic equivalents) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when continuous medication is required. A 30 percent rating is warranted where a workload of greater than 5 METs, but not greater than 7 METs, results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted when there is 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. After review of the record, the Board finds that the preponderance of the evidence is against a disability rating in excess of 10 percent for the veteran's tachychardia under the rating criteria. Despite her contentions that she experiences increased and incapacitating episodes of tachycardia with associated lightheadedness and difficulty breathing, the objective medical evidence of record does not show that she has had more than 4 such episodes documented by ECG or Holter monitor within a year or during the entire period of her appeal beginning in 2003. In this regard, VA and private treatment records, dating from January 2002 to January 2007, show the veteran has rarely sought treatment for tachycardia during this period and has not taken medication for her condition for most of this time, although Atenolol has been intermittently prescribed. Indeed, during her June 2007 personal hearing, she testified that while she missed work as a result of her episodes of tachycardia, the episodes generally lasted no more than 10 to 15 minutes and she was not taking medication for her condition, relying on different breathing techniques and lying down to alleviate her symptoms. During her August 2003 VA examination she indicated that her tachycardia episodes lasted from 15 minutes to 1 hour and were not precipitated by any activity or event. The objective medical evidence shows that the veteran has sought medical intervention for her tachycardia on 2 occasions since filing her claim, once in February 2005, and again in March 2005. During this period, only one test, a February 2005 ECG, documents SVT. An ECG taken at the time of the August 2003 VA cardiac examination revealed normal sinus rhythm with a 1st degree AV block and a March 2005 ECG showed normal sinus rhythm, while a March 2005 echocardiogram was assessed as unremarkable. Based upon this evidence, the Board finds that an increased rating in excess of 10 percent is not warranted because the evidence does not show more than 4 episodes of paroxysmal atrial fibrillation or SVT documented by ECG or Holter monitor to support a finding that increased evaluation is warranted under Diagnostic Code 7010. Likewise, although the December 2006 VA examiner estimated the veteran's metabolic equivalents (METs) as greater than 6 METs based on her ability to sustain vigorous activity for greater than 30 minutes, there is no objective medical evidence of sustained ventricular arrhythmias or medical evidence of cardiac hypertrophy or dilation. Moreover, while the August 2003 ECG showed evidence of a 1st degree AV block, 2 subsequent ECG studies and an echocardiogram showed no evidence of such. As such, the Board finds the preponderance of the evidence of record shows no current evidence of an AV block. Therefore, an evaluation in excess of 10 percent under Diagnostic Codes 7011 and 7015 for the veteran's tachycardia is not warranted. The Board also notes that other diagnostic codes for cardiovascular disabilities provide for ratings greater than 10 percent. However, there is no objective medical evidence of myocardial infarction (Diagnostic Code 7006); hypertensive heart disease, (Diagnostic Code 7007); heart valve replacement (DC 7016); coronary bypass surgery (DC 7017); cardiac transplantation (DC 7019); or cardiomyopathy (DC 7020). See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if supported by explanation and evidence). The veteran is competent to report her symptoms; however, the Board attaches greater probative weight to the objective medical evidence of record than to the veteran's statements in support of her claim. Taking the veteran's contentions into account and the medical findings, an evaluation in excess of 10 percent is not warranted for tachycardia. Finally, the Board finds that the veteran's tachycardia is not so unusual or exceptional as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this regard, the veteran's tachycardia has not necessitated frequent periods of hospitalization and there is no objective evidence that her tachycardia results in marked interference with her employment. The veteran testified in June 2007 that she works with the Postal Service and has missed only 6 to 7 days of work as a result of her tachycardia in the last 2 years. The veteran, of course, may apply to reopen her claim for increased compensation at any time should her disability picture change significantly. Recurrent Chalazion of the Right Eye The September 2003 rating decision granted service connection for recurrent chalazion of the right eye and assigned an initial noncompensable (0 percent) disability rating pursuant to 38 C.F.R. § 4.84a, Diagnostic Code 6099-6018, indicating an unlisted disability rated by analogy to chronic conjunctivitis. Under Diagnostic Code 6018, a 0 percent disability rating is assigned for healed conjunctivitis where there are no residuals. A maximum 10 percent evaluation is warranted for active chronic conjunctivitis with objective symptoms. Where conjunctivitis is healed with residuals, the residuals are to be rated. Resolving reasonable doubt in the veteran's favor, the Board finds that a 10 percent rating is warranted for her service- connected recurrent chalazion of the right eye. The evidence of record clearly indicates that the veteran has had several recurrences of chalazions on both the upper and lower eyelids of the right eye, during the course of her appeal. The evidence further shows that she underwent incision and drainage of right eyelid chalazions in January 2005 and February 2005. During a December 2006 VA ophthalmology examination, the examiner found evidence of chalazions on the right lower lid and scars on the upper lids of both eyes from previous surgeries. VA examination reports and treatment records indicate and the veteran testified that she experiences occasional pain and ocular discomfort with this condition. The December 2006 VA examiner diagnosed poor meibomian gland function, recurrent lid infections. Therefore, the evidence of record supports a finding that the veteran's recurrent chalazion of the right eye, manifested by chronic recurrence, several excisions with associated ocular discomfort, is analogous to active chronic conjunctivitis with objective symptoms. As such, the Board finds that the criteria for an evaluation of 10 percent have been met. Higher evaluations are assigned under the VA disability rating schedule for disabilities that cause vision impairment or disfiguring scars of the face. The August 2003 VA examiner specifically opined that it was unlikely the veteran's recurrent chalazions had any effect on her visual acuity and the December 2006 VA examiner noted the veteran maintained excellent vision. Likewise, VA treatment records, as well as both the 2003 and 2006 VA examination reports, show no evidence of any disfigurement to the right eyelid. In this regard, although the December 2006 VA examiner noted the veteran had a few scars on the upper right eyelid from previous surgeries, the examiner specifically found no evidence of lagophthalmos or symplepharon. Therefore, the Board finds that a higher evaluation, based on either visual impairment or residual scars, is not warranted for the veteran's service-connected recurrent chalazion of the right eye. The Board notes that, although the veteran has appealed an initial decision for her rating for recurrent chalazion of the right eye, which is effective from the date she filed her claim, the evidence of record does not indicate that the current disability level is significantly different from any other period during her appeal. Therefore there is no basis for considering staged ratings in this case. Fenderson v. West, 12 Vet. App 119 (1999). Finally, in evaluating this claim, the Board notes that there is no evidence of an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2004). Therefore, the Board will not consider the question of entitlement to an extraschedular evaluation. ORDER An increased disability rating for tachycardia is denied. Entitlement to an initial disability rating of 10 percent for recurrent chalazion of the right eye is granted, subject to the rules and regulations governing the payment of VA monetary benefits. ____________________________________________ CHARLES E. HOGEBOOM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs