BVA9508792 DOCKET NO. 93-10 417 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased evaluation for a heart condition, currently rated 10 percent disabling. 2. Entitlement to an increased evaluation for bronchial asthma, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from October 1976 to August 1981. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a July 1988 and January 1993 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (VARO). CONTENTION OF APPELLANT ON APPEAL The appellant contends that his service-connected heart condition and bronchial asthma are sufficiently severe to warrant an evaluation in excess of the 10 percent rating currently assigned to each disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of evidence is against an increased evaluation for the appellant's service-connected heart condition. It is further the decision of the Board that the weight of the evidence supports a 30 percent evaluation for the appellant's service-connected bronchial asthma. FINDINGS OF FACT 1. The appellant's service-connected heart condition is currently manifested by subjective complaints of chest pain, dizziness, fatigue, and heart palpitations well-controlled by verapamil, with clinical findings for a mitral valve prolapse, slight regurgitation, and a mid-systolic click, but absent objective evidence of murmurs, an enlarged heart, or hypertension, and is productive of a mild heart disability. 2. The appellant's service-connected respiratory disorder is currently manifested by subjective complaints of breathing difficulty along with coughing and wheezing, with clinical findings for bilateral basal rhonchi absent moist rales and wheezing, as well as decreased vital capacity on pulmonary function testing; bronchial asthma with moderately restrictive and obstructive pulmonary disease was the final diagnosis. CONCLUSIONS OF LAW 1. The schedular criteria for a disability evaluation in excess of 10 percent for the appellant's service-connected heart condition are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.104, Diagnostic Code 7099-7000 (1994). 2. The schedular criteria for a 30 percent disability evaluation for the appellant's service-connected bronchial asthma are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.97, Diagnostic Code 6602 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. I. Background The appellant served on active duty from October 1976 to August 1981. During his period of service, the appellant was seen for chest pains and frequent upper respiratory infections. He was diagnosed with mitral valve prolapse and asthma. By rating action dated January 1986, the appellant was service connected for a heart condition and asthma. At that time, each disability was considered 10 percent disabling in view of clinical findings on VA examination report dated December 1985 for mitral valve prolapse with a systolic mitral click, and asthma. VA outpatient treatment reports dated November 1986 to January 1988 reflect follow-up care for the appellant's heart condition. An electrocardiographic (EKG) study showed normal sinus rhythm with occasional premature atrial contractions. An x-ray study revealed a normal heart and lungs, and noted that there had been no changes since December 1985. The appellant was assessed with occasional atypical chest pain. In February 1988, the appellant requested an increased disability evaluation for his heart condition and respiratory disorder. On VA examination in June 1988, the appellant complained of difficulty breathing and recurrent respiratory infections; he also complained of dizziness, fatigue, and chest pain. By history, the appellant had asthma as a child which recurred in service. He reported several episodes of asthma a year which are short-lived, and three instances of pneumonia in the past year. The appellant indicated he has intermittent shortness of breath, or asthma attacks, which last for 4-5 seconds and are relieved by deep inspiration. Clinical findings noted no murmurs, but a mid- systolic click was heard. An x-ray study revealed no abnormalities, and an EKG study revealed early repolarization, and noted that the tracing was within normal limits. The impression was atypical chest pain, mid-systolic click, probable mitral valve prolapse syndrome without any significant mitral regurgitation, and status-post bronchial asthma. On VA examination in January 1989, the appellant complained of fatigue, chest pains, and numbness in the extremities. He described his heart as "flip-flopping" with each heartbeat. The appellant also complained of shortness of breath and wheezing on changes in the weather. It was noted that he used one pillow at night and had symptoms suggestive of paroxysmal nocturnal dyspnea. The appellant appeared well-developed, well-nourished, and in no acute distress. On examination of the cardiovascular system, clinical findings indicated that there was no apparent enlargement to percussion, and that the tones were clear, distinct, and of good intensity. Also, no murmurs were heard, and the appellant's pulse and blood pressure were within normal limits. On examination of the respiratory system, clinical findings indicated that expansion of the lungs was bilaterally free and equal, and that there were no abnormal breath sounds heard. The appellant was diagnosed with mitral valve prolapse and chronic obstructive pulmonary disease (bronchial asthma). In February 1989, an EKG study indicated sinus rhythm with a rate of 70 per minute with early repolarization. An x-ray study of the chest was normal, and a 24-hour Holter Monitor study revealed episodic supraventricular tachycardia. An echocardiographic study revealed the presence of a redundant mitral valve prolapse, a normal systolic and diastolic internal left ventricular diameter, and mild mitral regurgitation. The assessment was mitral valve prolapse with mitral valve prolapse syndrome manifested by atypical chest pain and paroxysmal supraventricular tachycardia, and mild mitral regurgitation. In October 1989, a personal hearing was conducted at VARO and attended by the appellant and his wife. The appellant testified that his heart condition significantly restricted his day-to-day activities, including playing with his children and mowing the lawn. His spouse testified that she does most of the work around their home because the appellant is too fatigued upon returning home from work. The appellant indicated that he was self- employed in the construction business and that he deals with the business operations. With respect to his asthma condition, he testified that he is congested with mucous and phlegm which is most prominent in the morning, and that he experiences shortness of breath merely with walking. The appellant's spouse testified that he experiences asthma attacks about 3 times a month. VA outpatient treatment reports dated August to October 1989 reflect follow-up care for the appellant's heart condition. It was noted that the appellant was doing well and that his condition was stable and had improved due to medication. The appellant reported that palpitations were rare. Clinical findings reflected good blood pressure readings, and noted that the chest and lungs were clear to auscultation and percussion. The appellant was assessed with mild mitral valve prolapse and regurgitation. VA outpatient treatment reports dated October 1992 reflect complaints by the appellant for shortness of breath, the sensation of something sitting on his chest, coughing, and wheezing. He reported using a bronchodilator to relieve bronchospasm and wheezing episodes. The appellant was diagnosed with asthmatic bronchitis. In November 1992, a VA examination was conducted. The appellant reported that he worked as a plumber after discharge from service and was laid off because he frequently took sick leave for his service-connected conditions. He complained of chest pain, particularly under emotional stress, along with episodes of dizziness, fatigue, and heart palpitations; the appellant stated that, since he has been taking verapamil, his symptoms have improved. He also complained of asthma attacks, particularly in humid and hot weather. He reported that he recently had episodes of frequent coughing and wheezing. He stated that he uses a bronchodilator to relieve bronchospasm and wheezing episodes. On VA examination in November 1992, the appellant appeared not to be in any acute distress and there was no dyspnea at rest or distention of the neck vein. The chest and lungs revealed bilateral basal rhonchi, without moist rales and wheezing. The heart had a regular rate of rhythm and a mid-systolic click was heard. An EKG study revealed sinus rhythm with a rate of 75 per minute, and early repolarization without either premature atrial or ventricular contractions; the cardiogram was performed with the appellant under the medication of verapamil to prevent tachycardia. On an x-ray study, the heart did not appear enlarged. An echocardiogram showed mitral valve prolapse along with slight regurgitation in the mitral and tricuspid regions; the left ventricle function, systolic and diastolic, was normal. On a pulmonary function test, there was decreased vital capacity indicative of restrictive and obstructive pulmonary disease of moderate degree. The appellant was assessed with mitral valve prolapse with a functional classification of II under the New York Heart Association guidelines, and bronchial asthma with moderately restrictive and obstructive pulmonary disease. II. Analysis The appellant is seeking a rating in excess of 10 percent for his service-connected heart condition and respiratory disorder. 38. U.S.C.A. § 1155 (West 1991). In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1994). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1994). A. Heart Condition The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history in accordance with 38 C.F.R. § 4.1 (1994) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), and concluded that the appellant is appropriately rated for his service-connected heart condition at the 10 percent disability rating level. The appellant's heart condition is currently rated analogously under diagnostic code 7099-7000 (rheumatic heart disease, inactive). The schedular criteria for a disability evaluation in excess of 10 percent under diagnostic code 7099-7000 requires objective evidence of more than mild heart disease as shown by cardiac manifestations, such as, a diastolic murmur with characteristic EKG manifestations, a definitely enlarged heart, dyspnea, elevated blood pressure, or arrhythmia. 38 C.F.R. § 4.104, Diagnostic Code 7099-7000 (1994). While the appellant's complaints of chest pain, dizziness, fatigue, and infrequent heart palpitations have been considered, the Board assigns greater probative value to the objective medical evidence in the report of VA examination dated November 1992. Clinical findings at that examination noted a mitral valve prolapse, slight regurgitation, and a mid-systolic click. However, there was no clinical evidence of murmurs, dyspnea, an enlarged heart, hypertension, or arrhythmia. In addition, the clinical findings on VA examination in November 1992 are essentially consistent with those found on VA examinations conducted in June 1988 and January 1989, as well as on numerous VA outpatient treatment reports of record. More than mild impairment is not shown by the objective medical evidence of record as required for a disability evaluation in excess of 10 percent under diagnostic code 7099-7000. 38 C.F.R. § 4.104, Diagnostic Code 7099-7000 (1994). Furthermore, in the reports of VA examinations dated from 1988 to 1992, and on VA outpatient treatment reports dated November 1986 to October 1992, there is no objective medical evidence of endocarditis, pericarditis, pericardial adhesions, syphilitic heart disease, arteriosclerotic heart disease, hypertensive heart disease, hyperthyroid heart disease, arrhythmia or conduction abnormalities, auriculoventricular block, heart valve replacement, or coronary artery bypass. As such, a rating in excess of 10 percent under diagnostic codes 7001-7017 (other diseases of the heart) is not warranted. In accordance with 38 C.F.R. § 4.40 (1993), the Board has considered the appellant's subjective complaints of severe pain and discomfort resulting in functional loss . However, in view of complaints for chest pain of short duration and clinical findings consistent with mitral valve prolapse of no more than mild severity, the Board finds that the preponderance of evidence is against the claim to an increased evaluation and that appellant's disability is properly rated at 10 percent as provided in diagnostic code 7099-7000. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the service-connected heart condition presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. The appellant reported that he was self-employed with a partner in the construction business and that he manages the day-to-day business operations of that company. The Board notes that no evidence has been presented of time lost from work as a result of his service-connected heart disability. In view of the above, the Board concludes that the preponderance of the evidence is against a disability rating in excess of the 10 percent currently assigned. B. Bronchial Asthma The Board has carefully reviewed the pertinent medical evidence, including the appellant's entire medical history in accordance with 38 C.F.R. § 4.1 (1994) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), and concluded that the weight of the evidence supports a 30 percent rating for the appellant's service- connected bronchial asthma disability. The appellant's bronchial asthma is currently rated under diagnostic code 6602. The schedular criteria for a 10 percent disability rating under diagnostic code 6602 require objective evidence of mild bronchial asthma as shown by objective evidence of paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks; a 30 percent rating for moderately severe bronchial asthma requires rather frequent asthma attacks (separated only by 10-14 day intervals) with moderate dyspnea on exertion between attacks. 38 C.F.R. § 4.97 Diagnostic Code 6602 (1994). In view of the appellant's complaints of breathing difficulty along with coughing and wheezing, and sworn testimony that the appellant suffers asthma attacks about 3 times a month, coupled with objective medical evidence of bronchial asthma with moderately restrictive and obstructive pulmonary disease, the Board finds that the weight of the evidence supports a 30 percent disability rating for moderate bronchial asthma. However, the Board does not believe that an evaluation in excess of 30 percent is warranted since there is no objective evidence of either weekly asthma attacks, or marked dyspnea on exertion with only temporary relief by medication. In accordance with 38 C.F.R. § 4.40 (1993), the Board has considered the appellant's subjective complaints of breathing difficulty and use of a bronchodilator to relieve wheezing. However, we believe that a 30 percent rating adequately accounts for the present level of disability in view of complaints for difficulty breathing of short duration which is relieved by a bronchodilator, and clinical findings consistent with moderate bronchial asthma. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Application of the extraschedular provisions is not warranted in this case. 38 C.F.R. § 3.321(b) (1993). There is no evidence that the service-connected bronchial asthma presents such an exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. ORDER An evaluation in excess of 10 percent for a heart condition is denied. A 30 percent rating for bronchial asthma is granted, subject to controlling regulations applicable to the payment of monetary awards. C.P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.