Citation Nr: 1119264 Decision Date: 05/18/11 Archive Date: 05/26/11 DOCKET NO. 06-28 239A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial compensable rating for post-operative mitral valve prolapse. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from December 1989 to March 1994. This appeal arises to the Board of Veterans' Appeals (Board) from a September 2004-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that granted service connection and a noncompensable rating for mitral valve prolapse with mitral regurgitation, status post mitral valve surgery, effective from December 17, 2003. The Board remanded the case in October 2009 for further development. FINDINGS OF FACT 1. Post-operative mitral valve prolapse with mitral regurgitation has been manifested by an estimated 10.4 METs, an ejection fraction of no less than 55 percent, and a need for continuous medication. 2. Not shown during the appeal period is an active infection with valvular heart damage, congestive heart failure, cardiac hypertrophy or dilation, or an ejection fraction of 50 percent or less. 3. The evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. CONCLUSION OF LAW The criteria for a 10 percent schedular rating for post-operative mitral valve prolapse with mitral regurgitation are met for the entire appeal period. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); § 5103 (West 2002 & Supp.2010); 38 C.F.R. §§ 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7000 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA must 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). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice of these provisions was first provided in January 2004, prior to adjudication of the case. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) found that VA must also provide additional notice. The Court held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Notice of the Dingess provisions was supplied in March 2006 and in November 2009, which is subsequent to the initial unfavorable decision on the claim. Under such circumstances, such timing error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to initial adjudication, this timing problem can be cured by remanding the case for the issuance of notice followed by readjudication of the claim) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (notification followed by re-adjudication of the claim in a supplemental statement of the case (SSOC), cures a timing defect). In this case, VA's duty to notify was satisfied after the initial decision by way of March 2006 and November 2009 notice letters that address all notice elements. Although the notice letters were not sent before the initial decision, this timing error is not unfairly prejudicial to the claimant because the claimant has been afforded opportunity to participate in his claim and has been allowed time to respond. VA has re-adjudicated the case by way of an SSOC issued in February 2011. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination where necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board remanded the case for an examination. The Board must therefore ensure compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Most of the remand instructions were followed; however, the requested ejection fraction value was not supplied. Because private medical reports contain timely ejection fraction values, another remand is not necessary. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private medical records. The claimant was afforded two VA medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2010). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Evaluation of a disability includes consideration of the Veteran's ability to engage in ordinary activities, including employment, and the effect of symptoms on functional abilities. A VA medical examination report must also include a "full description of the effects of disability upon the person's ordinary activity." 38 C.F.R. § 4.10; Martinak v Nicholson, 21 Vet. App. 447, 454 (2007). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the Court distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court has also held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Post-operative mitral valve prolapse with mitral regurgitation has been rated noncompensably for the entire appeal period under Diagnostic Code 7000. Under that code, valvular heart disease is rated as follows: During active infection with valvular heart damage and for three months following cessation of therapy for the active infection, it will be rated 100 percent. Thereafter, with valvular heart disease (documented by findings on physical examination and either echocardiogram, Doppler echo-cardiogram, or cardiac catheterization) resulting in chronic congestive heart failure, or; workload of 3 metabolic equivalents (METs) or less results in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent, it will be rated 100 percent. A 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year; or, where workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or, where left ventricular dysfunction with an ejection fraction of 30 to 50 percent is shown. A 30 percent rating is warranted when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; where there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 10 percent rating is warranted when a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. 38 C.F.R. § 4.104, Diagnostic Code 7000 (2010). Moreover, 38 C.F.R. § 4.104, Note (2) provides: When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing, or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Throughout the appeal period, the cardiac disability has been manifested by an estimated 10.4 METs with ejection fraction no less than 55 percent, and a need for continuous medication. Comparing these manifestations with the criteria of the rating schedule, the Board finds that the criteria for a 10 percent schedular rating under Diagnostic Code7000 are more nearly approximated. This is because there is a need for continuous medication. While an August 2001 letter from Dr. Hedge notes that cardiac medication had been discontinued, this is letter does not refer to the current appeal period. VA and private clinical records dated during the appeal period recite the cardiac-related medications that have been prescribed and some over-the-counter medications, such as fish oil. The Veteran uses Toprol XL(r), daily (Toprol XL(r) treats high blood pressure, angina; extended-release (long-acting) metoprolol also is used in combination with other medications to treat heart failure). The January 2010 VA compensation examination report reflects that the Veteran took Toprol XL(r) for control of heart palpitations. Where continuous medication is needed, a 10 percent rating is warranted. 38 C.F.R. § 4.104, Diagnostic Code 7000 (2010). The criteria for a schedular rating greater than 10 percent are not more nearly approximated. Active infection with valvular heart damage is not shown during the appeal period. The Veteran underwent open-chest surgery for repair of a severe mitral regurgitation, as noted in an August 2001 letter from Dr. Hedge. Following recovery, no further regurgitation was seen. His blood pressure and arrhythmia were well-controlled on medications. Had the Veteran applied for service connection in 1999 or earlier, a 100 percent rating for three months following cessation of therapy would have been mandatory; however, he did not apply for service connection until December 2003. Since December 2003, evidence of valvular heart disease includes documentation by both physical findings and echocardiogram. A finding of congestive heart failure would warrant a 100 percent rating under these circumstances, but congestive heart failure is not shown. In August 1999, just weeks prior to open-chest surgery, "symptoms of CHF" were noted, but not since then. Evidence of cardiac hypertrophy or dilation on echocardiogram would warrant a 30 percent rating; however, this is not shown during the appeal period. In June 1996, cardiomegaly was detected. A September private 1999 surgery report notes left ventricle and left auricle dilation; however, this resolved post-surgery. A July 2000 private echocardiogram showed a normal left ventricle size with an ejection fraction of 60 percent. In this case, the evidence does not contain factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal. The assignment of staged ratings is therefore unnecessary. Hart, supra. After considering all the evidence of record, the Board finds that the evidence favors the claim. An initial schedular 10 percent disability rating will therefore be granted. Extraschedular Consideration The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability, an extra-schedular evaluation will be assigned. Where the Veteran has alleged or asserted that the schedular rating is inadequate or where the evidence shows exceptional or unusual circumstances, the Board must specifically adjudicate the issue of whether an extraschedular rating is appropriate, and if there is enough such evidence, the Board must direct that the matter be referred to the VA Central Office for consideration. Colayong v. West 12 Vet. App. 524, 536 (1999); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Veteran has not asserted that the schedular rating is inadequate. Neither the Veteran nor the record reasonably raises the question of whether the Veteran is unemployable due to the disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Moreover, the disability has not been shown, or alleged, to cause such difficulties as marked interference with employment or to warrant frequent periods of hospitalization or to otherwise render impractical the application of the regular schedular standards. In the absence of evidence of such factors, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b) (1). See Thun v Shinseki, 572 F.3d 1313 (Fed. Cir. 2009). ORDER An initial 10 percent schedular rating for post-operative mitral valve prolapse with mitral regurgitation is granted for the entire appeal period, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs