Citation Nr: 1025618 Decision Date: 07/09/10 Archive Date: 07/19/10 DOCKET NO. 08-21 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas Ohio THE ISSUES 1. Whether new and material evidence have been submitted to reopen the claim of entitlement to service connection for pacemaker implant secondary to service-connected hypertension. 2. Whether new and material evidence have been submitted to reopen the claim of entitlement to service connection for congestive heart failure secondary to service-connected hypertension. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for enlarged heart secondary to service-connected hypertension, and if so, whether service connection is warranted for the claimed disability. 4. Entitlement to an evaluation in excess of 10 percent for service-connected enlarged aortic valve associated with hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B. Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1971 to September 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decisions dated in August 2007 and February 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In November 2009, the Veteran testified before the undersigned Veterans Law Judge at the Wichita, Kansas RO. A copy of the transcript is associated with the claims file. The claims to reopen entitlement to service connection for pacemaker implantation and congestive heart failure secondary to service-connected hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In May 2006, the RO denied the claim of entitlement to service connection for enlarged heart to include as secondary to hypertension. The Veteran did not file a notice of disagreement with this decision. 2. The evidence associated with the claims file subsequent to the May 2006 rating decision is material and raises a reasonable possibility of substantiating the Veteran's claim of entitlement to service connection for enlarged heart. 3. The medical evidence of record is at least in equipoise on whether the Veteran's enlarged heart is caused by the Veteran's service-connected hypertension. 4. The evidence of record indicates that the Veteran's service- connected enlarged aortic valve is manifested by a METs level greater than 7 and no more than 10. CONCLUSIONS OF LAW 1. The May 2006 rating decision that denied entitlement to service connection for enlarged heart is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). 2. The evidence submitted to reopen the claim of entitlement to service connection for enlarged heart is new and material, and therefore, the claim is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 3. Resolving reasonable doubt in the Veteran's favor, the Veteran's enlarged heart is due to service-connected hypertension. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R § 3.310 (2009). 4. The criteria for a rating in excess of 10 percent for enlarged aortic valve associated with hypertension are not met or approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7000 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) imposes a duty on the United States Department of Veterans Affairs (VA) to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As an initial matter, the Board notes that in Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23,353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini, effective May 30, 2008). Thus, any error related to this element is harmless. With respect to claims to reopen, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Regarding the request to reopen entitlement to service connection for enlarged heart, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. For increased-compensation claims, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a 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; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0% and 100% "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." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life"). An October 2007 VCAA letter notified the Veteran that he may submit evidence showing that his service-connected enlarged aortic valve has increased in severity. The RO informed the Veteran of the types of medical or lay evidence that he may submit. Specifically, the Veteran was informed that evidence that may show an increase in severity might be a statement from his doctor containing physical and clinical findings, results from laboratory tests or x-rays and the dates of examinations and tests. He was also informed that he could provide lay statements from individuals who are able to describe from their own knowledge and personal observations in what manner his disability has become worse. The letter notified the Veteran that he could provide statements from his employer as to job performance, lost time or other information regarding how his condition affects his ability to work. The Veteran was informed of his and VA's respective duties for obtaining evidence. The letter also notified the Veteran of how VA determines disability ratings and effective dates. The duty to notify the Veteran on how to substantiate his increased rating claim was satisfied prior to the initial AOJ decision. Based on the foregoing, the Board finds that VA has complied with the requirements of VCAA regarding the duty to notify. With respect to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, VA treatment records, private treatment records, a private opinion dated in February 2006 and two VA examinations dated in May 2007 and December 2007. The May 2007 and December 2007 VA examination reports reflect that the examiners conducted a review of the Veteran's claims file in addition to obtaining an oral history and a physical examination of the Veteran. The examiners documented in detail the symptoms of the Veteran's enlarged aortic valve and the effect those symptoms have on his occupational functioning and daily activities. Accordingly, the Board concludes that the examinations are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (VA must ensure that any VA examination undertaken during an appeal is adequate for rating purposes). Additionally, the claims file contains the Veteran's statements and testimony in support of his claim. The Board has carefully reviewed such statements and it concludes that he has not identified further available evidence not already of record. Therefore, the Board finds that all relevant facts have been developed properly and sufficiently in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. II. New and Material Evidence An unappealed rating decision dated in May 2006 denied the Veteran's claim of entitlement to service connection for an enlarged heart on the basis that the evidence of record did not show that the enlarged heart is related to his service-connected hypertension and the enlarged heart was not incurred in, aggravated by or caused by military service. The relevant evidence of record at the time of the May 2006 rating decision consisted of service treatment records, private medical records, a February 2006 private medical opinion and an April 2006 VA examination. The Veteran did not file a notice of disagreement within the one-year time limit after the May 2006 rating decision. Therefore, the May 2006 rating decision is final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. A finally decided claim will be reopened in the event that new and material evidence is presented. 38 U.S.C.A. § 5108 (West 2002). "New" evidence means existing evidence not previously submitted to VA. "Material" evidence means existing evidence that by itself or when considered with previous evidence of record relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2009). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Competency of new evidence, however, is not presumed. In September 2006, the Veteran submitted a claim to reopen the issue of entitlement to service connection for enlarged heart. Relevant evidence of record received since the May 2006 rating decision includes private treatment records from February 2007 to August 2007, a May 2007 VA examination and opinion, statements by the Veteran and a transcript of the November 2009 Travel Board hearing. The Board also notes that an April 2006 addendum to the April 2006 VA examination appears to have not been associated with the record during the May 2006 rating decision. The rating decision did not list this addendum as part of the evidence it considered and the medical opinion provided in the addendum was not discussed in the decision. Furthermore, the print date on the bottom of the addendum page indicates that it was printed and associated with the claims file after the May 2006 rating decision. The April 2006 addendum is new in that it was not of record at the time of the May 2006 Board decision and it is not cumulative or redundant of previous evidence. In addition, the Board finds that the evidence is material, as the April 2006 addendum provides a nexus between the Veteran's enlarged heart and his service-connected hypertension. Accordingly, the record contains evidence that raises a reasonable possibility of substantiating the Veteran's claim. Thus, the Board finds the new evidence relates to an unestablished fact necessary to substantiate the Veteran's claim and raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Such evidence is so significant that it must now be considered in order to fairly decide the merits of the issue on appeal. Accordingly, the Veteran's claim of entitlement to service connection for enlarged heart is reopened. 38 C.F.R. § 3.156(a). III. Merits of the Claim for Service Connection The Veteran filed a service connection claim for enlarged heart in September 2006. He contends that his enlarged heart is due to his long-standing hypertension. Service connection may be granted to a veteran for a disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection may be presumed for certain chronic diseases that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). In general, to establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). In addition, service connection for a claimed disability may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). A claim for secondary service connection generally requires competent evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Specifically, there must be medical evidence of (1) a current disability; (2) evidence of a service-connected disability; and (3) medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board notes that effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement the Court's decision in Allen, which, addressed the subject of the granting of service connection for the aggravation f a nonservice-connected condition by a service-connected condition. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c). Under the revised section 3.310(b), the regulation provides that VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified in 3.310(b) (2006)). A review of the regulatory comments reveal that, ultimately, it is the veteran's responsibility to support his or her claim by providing evidence of the baseline level of severity, and that it is not enough merely that an examiner concludes that there is "aggravation." See 71 Fed. Reg. 52,745 (Sept. 7, 2006). However, in this case, the Veteran's claim was filed prior to the effective date of the revised regulation. As such, the Board finds that the prior version of the regulation is more advantageous to the Veteran and should be applied. When a regulation changes and the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and after, the effective date of the change. See generally, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In assessing the Veteran's service connection claim for enlarged heart, the Board must first determine whether the Veteran has a current diagnosis of the claimed disability. A VA examination dated in April 2006 provided the Veteran with a current diagnosis of mild cardiac enlargement based on a chest X-ray. However, a VA examination conducted in December 2007 noted that the Veteran's heart was at the upper limits of normal in size and appeared to have decreased slightly in size since April 2006. The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Accordingly, the Board finds that the Veteran has a current diagnosis of the claimed disability. The evidence of record also shows that the Veteran is service- connected for hypertension. Thus, the second criteria for service connection on a secondary basis have been established. See 38 C.F.R. § 3.310(a); Wallin, 11 Vet. App. at 512. The Board observes that the record contains two conflicting VA medical opinions on whether the Veteran's enlarged heart is due to or the result of hypertension. In this respect, the VA examiner in an addendum to the April 2006 VA examination noted that there was minimal enlargement of the heart on chest X-ray and he determined that the enlargement is as likely as not due to hypertension. In contrast, the same VA examiner in May 2007 noted that the Veteran did not have an enlarged heart and therefore the claimed enlarged heart is not caused by or the result of hypertension. After a careful review of the evidence to include the aforementioned medical opinions, the Board finds no reason to accord more weight to one opinion over the other. Thus, the record contains an approximate balance of positive and negative evidence regarding the issue of whether the Veteran's current enlarged heart is due to the Veteran's service-connected hypertension. As such, the Board resolves any reasonable doubt in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board finds that entitlement to service connection for enlarged heart is warranted. III. Merits of the Claim for an Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). 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. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2009). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2009). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C.A. § 5107(b). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently rated 10 percent disabling for his enlarged aortic valve under 38 C.F.R. § 4.104, Diagnostic Code 7000 (2009) for valvular heart disease. The Board notes that in evaluating disabilities of the cardiovascular system, the current schedular criteria incorporates objective measurements of the level of physical activity, expressed in METs (metabolic equivalents) at which cardiac symptoms develop. One MET is the energy cost of standing quietly at rest and represents an oxygen update of 3.5 milliliters per kilogram of body weight per minute. See 38 C.F.R. § 4.104, Note 2 (2009). 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 when laboratory testing cannot be done for medical reasons. Id. Under Diagnostic Code 7000, a 10 percent rating is warranted for a workload greater than 7 METs but not greater than 10 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication is required. When a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or, with evidence of cardiac hypertrophy or dilatation on EKG, echocardiogram, or x- ray, a 30 percent rating is appropriate. See 38 C.F.R. § 4.104, Diagnostic Code 7000. A 60 percent rating requires more than one episode of acute congestive heart failure in the past year, or, workload 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. Id. A 100 percent rating is assigned with chronic congestive heart failure or a workload of 3 METs or less resulting 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. § 4.104, Diagnostic Code 7000. After a review of the record, the Board finds that the evidence does not show that the Veteran has a workload greater than 5 METs, but not greater than 7 METs, which result in dyspnea, fatigue, angina or syncope. A VA examination conducted in May 2007 reveals that the Veteran reported that he did not have a history of syncope fatigue or angina; however, he did have daily, positional dizziness and dyspnea on moderate exertion. Stress test results showed that the Veteran had an estimated METS of 10 or greater. He was provided with another VA examination in December 2007. The Veteran reported that he had daily fatigue, weekly dizziness and dyspnea on mild exertion. He also noted that he has had a continuous feeling of congestion and discomfort in the mid anterior area of the chest with daily phlegm production without a cough. The Veteran also reported numbness of the legs and feet. The examiner determined that exercise testing was medically contraindicated as the Veteran had abnormal exercise tolerance by exercise testing in February 2007. The examiner determined that the Veteran's estimated level of activity resulting in dyspnea, angina, dizziness or syncope was more than 7, but not more than 10 noting that slow stair climbing resulted in dyspnea. During the Board hearing, the Veteran testified that he feels extreme fatigue, exhaustion, weakness and dizziness or near faint episodes. He specifically asserted that when he stoops down to pick something up after he returns to his normal posture, he becomes extremely light headed, dizzy and almost near faint. The Veteran testified that he had problems walking, extreme leg cramps and he has hand tremors. As noted above, the schedular criteria incorporates objective measurements of the level of physical activity, expressed in METs (metabolic equivalents) at which cardiac symptoms develop. In addition, although, the Veteran has a history of congestive heart disease, the VA examiner in May 2007 has determined that he has not had congestive heart disease since the implantation of the pacemaker. The evidence of record also shows that testing for left ventricular dysfunction revealed an ejection fraction greater than 50 percent. Based on the foregoing, the Board finds that the Veteran's enlarged aortic valve more closely approximates the current evaluation of 10 percent. Accordingly, the assignment of the next higher rating of 30 percent for service-connected enlarged aortic valve is not warranted The Board has considered whether staged ratings are appropriate. The competent evidence of record shows that the Veteran's manifestations of an enlarged aortic valve have not fluctuated materially during the course of this appeal. As such, a staged rating is not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based 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 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. In this case, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected enlarged aortic valve is inadequate. A comparison between the level of severity and symptomatology of the Veteran's enlarged aortic valve with the established criteria found in the rating schedule for valvular heart disease shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The evidence of record does not indicate that his enlarged aortic valve has caused marked interference with his employment, necessitated frequent periods of hospitalization during the appeal period or otherwise rendered impracticable the regular schedular standards for rating such disability. Under these circumstances, and in the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). ORDER 1. New and material evidence having been submitted, the claim of entitlement to service connection for enlarged heart is reopened 2. Entitlement to service connection for enlarged heart secondary to service-connected hypertension is granted. 3. Entitlement to an evaluation in excess of 10 percent for service-connected enlarged aortic valve is denied. REMAND After a review of the record, the Board has determined that further notification is necessary before the Board adjudicates the remaining claims on appeal. When the veteran is attempting to reopen a previously disallowed claim, VA must notify the veteran of the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish entitlement to the underlying claim for the benefits sought. Kent v. Nicholson, 20 Vet. App. 1, 9 (2006). This requires VA to look at the bases for the prior denial and to respond with a letter describing what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. ld. at 10. In the January 2007 VCAA letter, the RO notified the Veteran of the evidence and information that was necessary to establish entitlement to the underlying claim for the benefits sought. However, the RO did not notify the Veteran of the evidence and information that was necessary to reopen the claim or describe what evidence would be necessary to substantiate the elements required to establish service connection that was found insufficient in the previous denial. Moreover, the Veteran has not demonstrated actual knowledge of these elements. Thus, the Board has determined that the Veteran should be provided such notice as required by Kent. ld. Accordingly, the case is REMANDED for the following action: 1. The RO should provide the Veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice should advise the Veteran of what evidence and information is necessary to reopen the claim and what evidence is necessary to substantiate the elements required to establish service connection that were found insufficient in the prior denial of his service connection claims for pacemaker implantation secondary to hypertension and congestive heart failure secondary to hypertension, as outlined by the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006). The Veteran should be afforded the appropriate period of time for response to all written notice and development as required by VA law. 2. Upon completion of the foregoing, the RO should readjudicate the Veteran's claims to reopen entitlement to service connection for pacemaker implantation secondary to service-connected hypertension and congestive heart failure secondary to service-connected hypertension, based on a review of the entire evidentiary record. If the benefits sought on appeal remains denied, the RO should provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2009). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs