Citation Nr: 0813144 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 03-02 766A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating higher than 30 percent for paroxysmal tachycardia, including on an extra-schedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from January 1963 to February 1967. This appeal to the Board of Veterans' Appeals (Board) is from an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his February 2003 substantive appeal (VA Form 9), the veteran requested a hearing at the RO before a Veterans Law Judge (VLJ) of the Board. This is commonly referred to as a Travel Board Hearing. However, in a statement he later submitted in support of his claim (VA Form 21-4138), he withdrew his request for a Travel Board Hearing. 38 C.F.R. § 20.704(e) (2007). The Board issued a decision in October 2004 denying the claim, and the veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2006 Order, the Court vacated the Board's decision and remanded the case to the Board for further development and readjudication in compliance with instructions in a joint motion. And to comply with these directives, the Board in turn remanded this case to the RO in October 2006 via the Appeals Management Center (AMC). The AMC has since completed the additional development and consideration of the claim, and has returned the case to the Board for further appellate review. In this readjudication of the claim, the Board is again denying a schedular rating higher than 30 percent. However, unlike before, the Board is remanding the ancillary issue of whether the veteran is entitled to an extra-schedular rating for his disability. FINDINGS OF FACT 1. At the rather recent VA examination in May 2007, on remand, the veteran reported experiencing at least 3-4 paroxysmal tachycardia episodes (supraventricular arrhythmias) per week. The objective medical evidence indicates he has been seen in the emergency room several times for brief stays since late 2000 for tachycardia episodes, after which he was released following the performance of necessary diagnostic testing. The episodes have been managed with medication. The May 2007 VA examiner estimated the veteran's MET level as about 6. 2. This case presents such an exceptional or unusual disability picture as to render impractical the application of the regular rating schedular standards. CONCLUSIONS OF LAW 1. As the veteran's paroxysmal tachycardia (supraventricular arrhythmias) currently has a 30 percent rating, the highest schedular evaluation permissible, a higher schedular rating is not possible. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7010 (2007). 2. The criteria are met, however, to refer this case to Compensation and Pension Service for consideration of an extra-schedular rating for this disability. 38 C.F.R. § 3.321(b)(1) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist VA has complied with the duty-to-notify provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters from the RO and AMC in May 2001 and October 2006 (1) informed the veteran of the information and evidence not of record that is necessary to substantiate his claim; (2) informed him of the information and evidence that VA would obtain and assist him in obtaining; (3) informed him of the information and evidence he was expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claim, or something to the effect that he should "give us everything you've got pertaining to your claim." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The AMC complied with the requirements in Dingess when it sent a VCAA notice letter in October 2006, on remand, discussing the downstream disability rating and effective date elements of the claim and then went back and readjudicated the claim in the September 2007 supplemental statement of the case (SSOC). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For an increased-rating claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate the claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Id. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In this case at hand, the Board finds that the RO's October 2006 notice letter, along with the SOC issued in January 2003 and SSOC issued in September 2007 have substantially informed the claimant of the criteria pertinent to his increased rating claim and the evidence necessary to substantiate it. As will be further discussed below, any prejudice due to defect in timing of notice or deficiency of notice pursuant to Vazquez-Flores is cured by correspondence received from the veteran and his representative subsequent to the aforementioned letter, SOC, and SSOC. The Board also finds that the veteran has been advised of the need to submit additional evidence, of the effect of the worsening/increase in severity on his employment and daily life as evidenced by the notice of disagreement (NOD) in February 2005 and his representative's statements. Indeed, these documents specifically contend that he has medical evidence in support of his claim showing a worsening of his service-connected residuals of a right knee arthroscopy. Hence, the veteran's statements concerning his worsening condition and his representatives statements concerning the impact this condition has on the daily activities shows an awareness (actual knowledge) of what is necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007). Indeed, the Court's Order (granting the joint motion) and the Board's October 2006 remand explained that the March 2004 VA examination was inadequate because it did not report MET values that are necessary to demonstrate a higher rating under 38 C.F.R. § 4.104, DCs 7011 and 7015. The AMC corrected this problem, on remand, by having the veteran reexamined in May 2007 to obtain this additional information concerning his METs. See 38 C.F.R. § 4.2, indicating that if a report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there is any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claim; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). VA also fulfilled its duty to assist by obtaining all relevant evidence concerning the claim under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO and AMC, on remand, obtained all pertinent medical records identified by the veteran and his representative - including the VA outpatient treatment records about which the veteran had referred during his March 2004 VA compensation examination. 38 C.F.R. § 3.159(c)(2) and (3). In addition, as instructed in the joint motion, VA provided the veteran another compensation examination to determine the severity of his paroxysmal tachycardia - including his METs level. See Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the Board finds that no further assistance is needed to meet the requirements of the VCAA or Court. II. Whether the Veteran is Entitled to a Disability Rating Higher than 30 Percent for his Paroxysmal Tachycardia VA determines disability ratings by comparing the veteran's symptoms with those listed in VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings represent, as far as practically can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations should be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, VA will assign the lower rating. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the veteran's favor. 38 C.F.R. § 4.3. Where, as here, the veteran is appealing the rating for a disability that was service-connected many years ago, as opposed to timely contesting the rating initially assigned following the grant of service connection, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court recently held that VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. See Hart v. Mansfield, No. 05- 2424 (U.S. Vet. App. Nov. 19, 2007). That is to say, the Board must consider whether there have been times when the disability has been more severe than at others. The relevant temporal focus for adjudicating the level of disability of an increased-rating claim is from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart, supra. See also 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). As an initial matter, the Board notes that the 30 percent rating at issue has been in effect for the paroxysmal tachycardia since October 1, 1967. In various statements submitted in support of his increased-rating claim, the veteran has maintained the condition has worsened so as to warrant a higher rating. He says he gets "attacks" about 5 times per week, but that they generally do not last as long as 15 minutes. See his February 2003 substantive appeal (VA Form 9). The medical records on file indicate that, in December 2000, the veteran was seen on an emergency basis at a private hospital with complaints of rapid heartbeat and chest palpitations. He was diagnosed with supraventricular tachycardia, and he had 160 heart beats/minute. The December 2000 radiology report of the heart indicates there is "no consolidation or active failure." The veteran was seen again at a private hospital in May 2002, complaining of substernal chest discomfort and a rapid heartbeat. He reportedly had experienced intermittent (about once a month) episodes of palpitations during the several immediately preceding years, but also mentioned an increase in frequency (approximately twice per week) and duration of these episodes during the three months prior to his then current admission. Impressions noted were sick sinus syndrome with paroxysms of atrial fibrillation, coronary insufficiency, and atherosclerotic heart disease. A stress test revealed no evidence of ischemia with a preserved ejection fraction and mild septum hypokinesia. The veteran was seen at a private hospital in April 2003 with complaints of palpitations, dizziness, chest pain, and shortness of breath. The diagnosis was supraventricular tachycardia with a heart rate of 159. VA medical center (VAMC) outpatient treatment records dated from 2000 to 2001 indicate a report of intermittent heart arrhythmia episodes, occurring about twice a week, due to recurrent supraventricular tachycardia. Private medical facility records dated from July to August 2003 document reports of rapid heartbeat with findings of sinus rhythm, intraventricular conduction defect (IVCD), and sinus bradycardia. The record also indicates the veteran was provided a VA compensation examination in connection with this claim in October 2001. The report of that evaluation indicates he continued to have intermittent tachycardia episodes, which had occurred more frequently over time. He was on medication to manage these episodes, and Valsalva maneuvers usually were helpful in controlling his heart rate. He denied experiencing shortness of breath, cough, expectoration, orthopnea, paroxysmal nocturnal dyspnea (PND), and blood pressure problems. Electrocardiogram results indicated a left anterior fascicular block with a normal sinus rhythm, but chest X-rays were normal. Echocardiogram/stress test results showed basically normal findings, with normal ventricular systolic function overall, no mitral valve prolapse, and good exercise capacity. There was no evidence of ischemia. The right atrium and left atrium of the heart, and right ventricular size and function were normal. The veteran was diagnosed with supraventricular tachycardia and questionable mitral valve insufficiency. As already mentioned, the Board remanded this case in October 2006 to comply with the Court's Order (granting the joint motion). A remand was required so the veteran could be reexamined because his prior March 2004 VA compensation examination was determined to be inadequate for rating purposes. Consequently, the AMC scheduled another VA compensation examination in May 2007. The May 2007 examination report notes the veteran complained of increasing rapid heart beats that awaken him at night producing chest pain, shortness of breath and fatigue. These occur three to four times per week and last up to ten minutes, but definitely under an hour. He reported having more frequent episodes and being quite frightened driving his car or getting sudden attacks, which he said have not stopped even with the Valsalva maneuvers. He denied any myocardial infarction (i.e., heart attack), congestive heart failure, or rheumatic heart disease. He reported symptoms of dyspnea, fatigue, angina, and dizziness with one episode of syncope when he hit his head on the sink or bathtub. The examiner noted the veteran's blood pressure was 159/77 and pulse 59. His heart had regular sinus rhythm equal to pulse rate. There was a grade 1/6 systolic murmur best heard at the apical area. There were no rubs, gallops or clicks. An EKG showed sinus rhythm, left axis deviation and right bundle branch block. The echocardiogram revealed normal left ventricular size and normal left ventricular systolic function. The ejection fraction was normal and there was no pericardial effusion. The chest X-ray revealed atherosclerotic changes in the aorta, but the heart size was normal and there was no evidence of cardiac decompensation. The estimated MET level was about 6. The veteran's medications included coumadin, digoxin and sotalol. The examiner diagnosed paroxysmal tachycardia. Under Diagnostic Code 7010, VA assigns a 30 percent rating for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than 4 episodes/year as documented by ECG or Holter monitor. The evidence indicates the veteran has been in an emergency room several times since late 2000 due to tachycardia episodes. He reportedly, however, has even more frequent episodes than the emergency room visits, alone, suggest. Whether he has a few to several episodes a week, as reported, or 4-plus episodes a year, as required under DC 7010, since 30 percent is the highest schedular rating permissible under DC 7010, there simply is no basis for assigning a higher rating under this code. He has obtained the maximum allowable benefit under this code. Nor can a higher rating be assigned through the employment of other closely analogous diagnostic codes that provide schedular evaluations higher than 30 percent. More specifically, while Diagnostic Codes 7011 and 7015 both permit a schedular evaluation of 60 percent (the next higher evaluation after 30 percent), they apply to diagnosed ventricular arrhythmias and atrioventricular blocks, respectively, not diagnosed in this case. Moreover, a 60 percent evaluation of ventricular arrhythmia or atrioventricular block under these Diagnostic Codes focuses upon significant evidence of dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction, or acute congestive heart failure, also not shown here. Moreover, even assuming for the sake of argument that the veteran at least occasionally has these type symptoms (recognizing there are some indications of this in the record), his rather recent VA examination in May 2007, on remand, estimated his MET level as about 6, which still would only warrant at most a 30 percent evaluation under DCs 7011 and 7015. One metabolic equivalent, or MET, incidentally, 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. Hence, VA must deny his appeal for a schedular rating higher than 30 percent for his paroxysmal tachycardia. Also, since the veteran has not met the requirements for a rating higher than 30 percent (under any of the diagnostic codes mentioned) at any time since one year prior to filing his claim, the Board cannot "stage" his rating under Hart, either. ORDER The claim for a disability rating higher than 30 percent for paroxysmal tachycardia (supraventricular arrhythmias) is denied. REMAND The veteran claims that his service-connected paroxysmal tachycardia causes marked interference with his employment - meaning above and beyond that contemplated by his current 30 percent schedular rating for this condition, and that it also causes frequent, i.e., repeated hospitalization warranting an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). His representative specifically made this argument in a brief to the Board in August 2004. Indeed, one of the reasons the Court's Order vacated the Board's prior October 2004 decision was for failing to fully evaluate how the veteran's service- connected paroxysmal tachycardia interfered with his employment or caused frequent periods of hospitalization. The Board has considered whether the veteran's disability picture warrants an extraschedular evaluation due to the severity of his paroxysmal tachycardia. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to § 3.321(b)(1), an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Court has held that the question of an extraschedular rating is a component of a veteran's claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996). Bagwell stands for the proposition that the Board may deny extraschedular ratings, provided that adequate reasons and bases are articulated. See VAOPGCPREC 6-96 (Board may deny extraschedular ratings provided that the RO has fully adjudicated the issue and followed appropriate appellate procedure). Bagwell left intact a prior holding in Floyd v. Brown, 9 Vet. App. 88, 95 (1996), wherein the Court had found that when an extraschedular grant may be in order, that issue must be referred, pursuant to 38 C.F.R. § 3.321, to those "officials who possess the delegated authority to assign such a rating in the first instance." There are various clinical findings of record providing some insight into how the veteran's service-connected paroxysmal tachycardia markedly interferes with his employment or causes frequent periods of hospitalization, though without necessarily resolving this issue. The record shows the veteran has been seen in the emergency room a number of times since 2000 for tachycardia episodes. He has indicated that he is usually released after four or five days in the hospital. These tachycardia episodes obviously caused him to miss some time at work, however, it is unclear how much. Nevertheless, the October 2001 VA examination notes he reported working full time as a forklift operator and exercising daily by walking. In addition, the May 2002 private hospital records indicate he reported being gainfully employed as a long- distance truck driver. Even during the March 2004 examination, he reported full-time gainful employment. But during his most recent May 2007 VA examination, he indicated that he is now unemployed. In addition, during one of his hospitalizations in December 2000 at the North Broward Medical Center, a cardiologist, Dr. M.P., explained the potential danger of the veteran's medical condition, particularly in reference to his prior occupation as a truck driver. In light of these facts, the Board is remanding this case to the RO for consideration of an extra-schedular rating: 1. Determine whether the veteran is entitled to extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). If he is, refer this case to the Under Secretary for Benefits or the Director of Compensation and Pension Service for appropriate action. 2. If this claim is not granted to the veteran's satisfaction, prepare an SSOC and send it to him and his representative. Give them time to respond to it before returning this case to the Board for further appellate consideration. The veteran has the right to submit additional evidence and argument concerning the claim the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs