Decision Date: 08/08/95 Archive Date: 11/04/95 DOCKET NO. 93-03 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased evaluation for residuals of scrub typhus, currently rated 10 percent disabling. ATTORNEY FOR THE BOARD Charles G. Sener INTRODUCTION The appellant had active military service from May 1991 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1992 rating decision of the Department of Veterans Affairs' (VA) Los Angeles, California, Regional Office (RO), which granted service connection for the residuals of scrub typhus, and assigned a 100 percent disability evaluation from September 12, 1991, through February 29, 1992, and a 10 percent disability evaluation beginning March 1, 1992. After developing additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet.App 119 (1993), informed the appellant in an April 1995 memorandum of the additional evidence developed, and provided an opportunity to respond. A July 1995 report of contact indicated that the appellant had not submitted any additional evidence or argument as of July 18, 1995. Review of the claims file indicates that the appellant may also be seeking entitlement to reimbursement of medical expenses associated with ongoing private chiropractic care. This claim is not inextricably intertwined with the current claim and has not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the residuals of her scrub typhus are more severely disabling than currently evaluated. She asserts that she has persistent complications related to scrub typhus that require medical treatment. 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 appellant'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 the evidence is against a disability evaluation in excess of 10 percent for residuals of scrub typhus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The service episode of scrub typhus, from July 1991 to August 1991, included cardiac manifestations in the form of a Grade II/VI systolic murmur. 3. The appellant currently has a systolic murmur and a tender lymph node, without evidence of a diastolic murmur or an enlarged heart. 4. A February 1995 independent medical opinion disclosed that "[t]he presence of [a] systolic ejection murmur at the [appellant's] left sternal border cannot be related to any cardiac involvement related to the scrub typhus." 5. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The schedular criteria for a disability evaluation in excess of 10 percent for residuals of scrub typhus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.88a, 4.104, Diagnostic Codes 6317, 7000 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant claims that she occasionally experiences episodes of "heart racing," which may be related to the residuals of her scrub typhus. Because a well-grounded claim is neither defined by the statute nor the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a minimally well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of the claim has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). 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). Scrub typhus warrants a 100 percent evaluation during the presence of active disease, and for 6 months thereafter. Any related residual cardiac condition (analogous to rheumatic heart disease), pulmonary involvement, thrombophlebitis, deafness, etc., is evaluated separately. 38 C.F.R. § 4.88a, Diagnostic Code 6317 (1994). A 100 percent evaluation is warranted for active rheumatic heart disease while the disease is active and, with ascertainable cardiac manifestations, for a period of 6 months thereafter. 38 C.F.R. § 4.104, Diagnostic Code 7000 (1994). A 10 percent evaluation is warranted for inactive rheumatic heart disease without heart enlargement following established active rheumatic heart disease with an identifiable valvular lesion and slight, if any, dyspnea. A 30 percent evaluation is warranted for 3 years from the termination of an established service episode of rheumatic fever, or its subsequent recurrence, when there were cardiac manifestations during the episode or recurrence. A 30 percent evaluation is also in order when there is a diastolic murmur with characteristic EKG manifestations or a definitely enlarged heart. A 60 percent evaluation requires definite heart enlargement; severe dyspnea on exertion, elevation of systolic blood pressure, or such arrhythmias as paroxysmal auricular fibrillation or flutter or paroxysmal tachycardia; and preclusion of more than light manual labor. A 100 percent evaluation for inactive rheumatic heart disease requires clinical and roentgenogram confirmation of definite enlargement of the heart; dyspnea on slight exertion; rales, pretibial pitting at the end of the day, or other definite signs of beginning congestive failure; and preclusion of more than sedentary labor. 38 C.F.R. § 4.104, Diagnostic Code 7000 (1994). A review of the claims file reveals that the appellant was hospitalized during service at a military medical facility, from July 1991 to August 1991, for treatment of scrub typhus. An August 1991 military physical examination revealed the following: bilateral posterior cervical adenopathy and non-tender anterior cervical adenopathy; Grade II/VI systolic ejection murmur at the upper sternal border, no gallops or rubs; 1 cm mobile, non-tender, left axillary node; and fine, erythematous, maculopapular rash on the trunk, proximal arms and legs, sparing the palms and soles. A chest x-ray was normal, and an EKG showed normal sinus rhythm. At an authorized VA examination, conducted in February 1992, the appellant complained of sensitivity in the low back, at the sight of a lumbar puncture performed during her aforementioned hospitalization. She also complained of fatigue that sometimes resulted in exhaustion. She related a history of occasional unexplained headaches, and a recent flu that lasted longer than normal with temperature exceeding 104 degrees. She reported diminished physical strength and activity, with a concomitant need for more sleep. During regular work hours she experienced muscular aches and left shoulder weakness. The clinical examination was positive for a systolic heart murmur. However, x-rays noted a normal chest with no indication of heart enlargement, and an EKG revealed normal sinus rhythm with sinus arrhythmia. The appellant's blood pressure was 120/70, and the remainder of the physical examination was normal, with the exception of a tender lymph node in the left axillary area. The examiner did not report a diagnosis; and there was no finding of a diastolic murmur. Although the appellant averred in her January 1993 "Substantive Appeal" to the Board that she experienced symptoms, including fatigue, headaches, a chronic cough, and occasional heart-racing episodes which she treats with rest, she has not proffered any additional medical evidence in support of her claim. Therefore, we must rely upon the medical evidence of record; specifically, the service medical records and the most recent VA medical examination conducted in February 1992. The Board notes that scrub typhus warrants a 100 percent evaluation during the presence of the active disease, and for 6 months thereafter. 38 C.F.R. § 4.88a, Diagnostic Code 6317 (1994). Therefore, the appellant's scrub typhus warranted a 100 percent disability evaluation from September 12, 1991, the day following the veteran's discharge from service, until six months from the time when the active disease was no longer shown, or through February 29, 1992. Following the termination of the six month period for which a 100 percent evaluation is assigned, scrub typhus is subsequently rated analogous to rheumatic heart disease. 38 C.F.R. § 4.88a, Diagnostic Code 6317 (1994). A 30 percent evaluation is warranted for 3 years from the termination of an established service episode of rheumatic fever, or its subsequent recurrence, when there were cardiac manifestations during the episode or recurrence. 38 C.F.R. § 4.104, Diagnostic Code 7000 (1994). The appellant's inpatient service medical records, for the period July 1991 to August 1991, revealed a grade II/VI systolic ejection murmur at the upper sternal border. This heart murmur was established during the appellant's scrub typhus service episode that was diagnosed in July 1991. The Board notes that the rating decision dated in March 1992 indicated that the appellant had a systolic murmur and a tender lymph node. The United States Court of Veterans Appeals (Court) has held that if the medical evidence of record is insufficient the Board is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). In order to ensure that the appellant's claim received the benefit of the doubt in assessing her claim, the Board referred the claims folder to J. K. Ghali, M.D., a specialist in cardiovascular disease, for an independent medical opinion. He was requested to review the appellant's claims file and offer an opinion as to whether the appellant's grade II/VI systolic ejection murmur at the upper sternal border was a cardiac manifestation related to residuals of scrub typhus. A summary of his opinion is provided below. A Chest x-ray performed on July 15, 1991[,] revealing normal cardiac silhouette with no evidence of effusion is strong evidence against myocarditis. However, it should be noted that this x-ray predated the admission for the hospitalization period. The normal echocardiogram, however, performed on July 18, 1991, is a definitive test to exclude the presence of clinically significant myocardial involvement. Although, myocarditis is common during the course of scrub typhus, the clinical evidence of myocardial involvement typically is not severe and is usually not associated with residual cardiac damage. . . . The presence of systolic ejection murmur is not, however, a feature of the cardiac involvement of scrub typhus. Thus, the answer to the question whether the presence of systolic ejection murmur at the left sternal border is related to the patient's scrub typhus is negative. The presence of systolic ejection murmur at the left sternal border cannot be related to any cardiac involvement related to the scrub typhus. After careful and longitudinal review of the evidence presented in this case, including the February 1995 independent medical opinion, which disclosed that the presence of a systolic ejection murmur is not a feature of the cardiac involvement of scrub typhus, the Board finds that the clinical evidence of record reveals that the appellant currently has a systolic murmur and a tender lymph node, without evidence of a diastolic murmur or an enlarged heart. In applying the schedular criteria under Diagnostic code 7000 for inactive rheumatic heart disease, the Board notes that a disability evaluation in excess of 10 percent requires cardiac manifestations, or diastolic murmur with characteristic EKG manifestations or definitely enlarged heart. The Board finds that the appellant's residuals of scrub typhus are properly rated as 10 percent disabling. Therefore, an increased schedular evaluation may not be assigned. Consideration has also been given to the potential application of the various provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the appellant as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). As discussed above, the medical evidence explicitly reveals that a disability evaluation in excess of 10 percent is not in order for the current-shown residuals of the appellant's scrub typhus. In particular, the evidence does not suggest that the residuals of scrub typhus present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, the residuals of scrub typhus have not demonstrated a marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. Therefore, the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1994) is not warranted. ORDER An increased evaluation for residuals of scrub typhus is denied. (CONTINUED ON NEXT PAGE) BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -