Citation Nr: 9917095 Decision Date: 06/22/99 Archive Date: 06/29/99 DOCKET NO. 95-10 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to a permanent schedular 100 percent rating for myocarditis with recurrent cardiac arrhythmia associated with cardiomyopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active military service from November 1972 to November 1985, when he was retired due to disability. This matter comes before the Board of Veterans' Appeals (Board) on appeal from adverse rating decisions of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board for additional development in March 1997. When the case was last before the Board, it was determined that the veteran had perfected an appeal on the issue of entitlement to a separate compensable evaluation for hypertension. The veteran's contentions in this regard and the medical evidence supporting a separate evaluation were discussed in the Board's previous remand. The VA examination conducted on remand in February 1998 indeed indicated that hypertension was a separate disorder, unrelated to the veteran's other heart disabilities. Accordingly, in its July 1998 rating action, the RO granted the veteran a separate compensable evaluation for hypertension (10 percent) in consideration of the February 1998 VA physician's finding that the degree to which the veteran had been compliant with hypertensive drug therapy was uncertain but that, when he took prescribed medication on a consistent basis, his blood pressure was controllable. The veteran had requested a separate compensable evaluation and that was provided on remand and, accordingly, this was a full grant of the issue sought on appeal. There is on file a VA Form 9, Appeal to Board of Veterans' Appeals, dated on September 1, 1998, which discussed the apparent issue of entitlement to the payment of unauthorized private medical expenses for medical care provided the veteran at the Memorial Hospital in Colorado Springs, Colorado, in July 1997. The veteran also said he wanted an RO hearing. However, there is also on file a report of contact dated in March 1999 which indicates that the VA medical center had approved payment but that the veteran needed to send receipts to the VA medical center. It is unclear whether this issue has been decided to the veteran's satisfaction. There is no formal notification of a decision by a VA medical center (VAMC) regarding the payment of unauthorized private medical expenses with which to associate the veteran's VA Form 9 as an actual notice of disagreement, nor is there a statement of the case and substantive appeal. This issue is referred back to the RO for any appropriate action. REMAND This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. This case was previously remanded in March 1997 on the basic issue of entitlement to an increased evaluation for heart disability. However, the veteran had several clinically identified disabilities of the heart and the principal purpose for the remand was to carefully evaluate exactly what disabilities were service connected and their interrelationship with each other. As mentioned above, the veteran is in fact service connected for hypertension as a separate compensable disability. Prior to the Board remand, the RO had evaluated the veteran's heart disability solely for arrhythmia and this was clearly in error. A VA examination was provided in February 1998, at which time a VA cardiologist indicated that the veteran had hypertension, severe dilated cardiomyopathy with left ventricular dilation, atrial flutter (cardiac arrhythmia) secondary to accessory pathway and cardiac tachy dysrhythmia. However, following apparently successful treatment in August 1997 with "radio frequency ablation," atrial flutter and cardiac tachy dysrhythmia had not recurred. Following a careful review of the evidence of record, including that most recent examination, the RO recharacterized the service-connected disability as myocarditis with recurrent cardiac arrhythmia associated with cardiomyopathy. The RO then granted an increased schedular evaluation in accordance with the criteria then in effect (now superseded) from 30 to 60 percent, effective from the date of claim in March 1993, until the veteran's hospitalization in July 1997. The RO thereafter granted an increased schedular evaluation to 100 percent from the date of that hospitalization (also in accordance with the superseded criteria, specifically 38 C.F.R. § 4.104, Diagnostic Code 7000 for rheumatic heart disease) (an analogous rating), which provides such an evaluation for active heart disease with ascertainable cardiac manifestation, for a period of six months. The July 1998 supplemental statement of the case apparently considered both old and new criteria but applied the older criteria as the greater benefit in accordance with Karnas v. Derwinski, 1 Vet. App. 308 (1991), since the older criteria allowed that 100 percent evaluation to continue for a period of six months whereas other new criteria for schedular evaluation of heart disease allowed such 100 percent evaluations only for three months. Following the veteran's notification of this rating action, he submitted another VA Form 9 in August 1998 which did not express any dissatisfaction with older evaluations but which disagreed with the most recent rating action only in regards to the fact that it denied a total and permanent 100 percent rating for heart disability. While the most recent July 1998 statement of the case provided both old and new criteria for evaluation of heart disability, and a comprehensive discussion of the clinical findings regarding the veteran's heart, that statement of the case did not provide the applicable regulation regarding permanent and total disability. This regulation is nowhere found in the schedular criteria for diseases of the heart, either old or superseded criteria. That is, the veteran was provided a 100 percent evaluation for his service-connected "myocarditis with recurrent cardia arrhythmia associated with cardiomyopathy" in accordance with 38 C.F.R. § 4.104, Diagnostic Code 7013-7000 (1997) (now superceded), but that rating by analogy to rheumatic heart disease specifically notes a 100 percent evaluation is warranted for "active disease" with ascertainable cardiac manifestation for a period of six months (this rating is in essence a temporary total rating, although it may certainly be extended, so long as the schedular criteria continue to be manifested). The veteran most recently disagreed with the temporary nature of that rating. However, that 100 percent evaluation was made effective from July 1997 and six months from that rating action would have expired at the end of January 1998. There is no indication, however, that any additional or follow-on evaluation of the veteran's heart disability has been performed either by medical personnel or by adjudication at the RO. Accordingly, the question of whether the veteran is entitled to a permanent (or continuing) 100 percent schedular evaluation is essentially not ripe for appellate review. That is, the Board cannot decide this question adversely to the veteran because he has not been provided the applicable regulation, and the Board lacks sufficient recent clinical evidence or adjudicatory action to affirm or deny a permanent total evaluation. 38 C.F.R. § 3.340 (1998) provides that total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. Id. at (a). Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of both eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. at (b). The Board finds it noteworthy that the February 1998 VA examination, which provided an excellent medical history of the veteran's combined heart disability, noted that the veteran had significant congestive heart failure in August 1997 with marked exertional dyspnea and multiple episodes of flutter. However, he was subsequently transferred to the VAMC at Salt Lake City where he underwent radio frequency ablation of an accessory pathway which was apparently the cause of his recurrent episodes of atrial flutter. The VA cardiologist wrote that the veteran's principal disorder was an idiopathic dilated cardiomyopathy with typical manifestations of congestive heart failure and objective findings on echocardiography and cardiac catheterization of the same. However, he also noted that, following the veteran's treatment with radio frequency ablation, he did not have any further symptoms of atrial flutter or cardiac tachy dysrhythmia. This seems to have indicated some degree of improvement. On the other hand, this doctor also wrote, apparently in accordance with the new criteria for evaluation of the heart, that the veteran's exercise tolerance with regard to cardiomyopathy and findings of objective data of a reduced ejection fraction, most closely corresponded to chronic congestive heart failure with a workload of less than three Mets. Such criteria is consistent with the currently assigned 100 percent schedular evaluation under several of the newly enacted criteria (although, on review of that criteria , it appears that the best new criteria for analogous rating of the veteran's heart would be Diagnostic Code 7020). Accordingly, whether or not the veteran is entitled to a continuation of his previously assigned 100 percent schedular evaluation for his heart disability and/or whether he is entitled to a permanent 100 percent evaluation remains to be seen and will require additional clinical evaluation. Accordingly, this case is REMANDED to the RO for the following action: 1. The veteran should be provided the opportunity of submitting any additional evidence or argument for consideration which he may have. If he needs assistance in securing any particular information, the RO should help him. 2. Thereafter, the veteran should again be scheduled for a complete VA cardiovascular examination, preferably by the same VA physician who performed his most recent such examination in February 1998 (J. H., M.D.). The (1) claims folder, (2) a complete copy of this remand, and (3) a copy of the new schedular criteria at 38 C.F.R. § 4.104, Diagnostic Codes 7000 through 7020, should be provided to the cardiologist for review in connection with the examination. After a review of the claims folder and this remand, and conducting an examination, this cardiologist should be requested to provide another complete and accurate diagnosis of the veteran's heart and cardiac disorders. He should again be requested to identify the principal disorder identified and describe the relationship of that disorder to all other disorders found. He should be requested to provide an opinion as to which of the new schedular criteria best describes the veteran's service-connected heart disability and an opinion as to the degree or percent of such disability. The cardiologist should provide an opinion as to whether or not improvement demonstrated following the veteran's August 1997 radio frequency ablation has been sustained. Finally, the cardiologist should be requested to express an opinion as to whether or not the veteran's collective service-connected disability of the heart is permanent in nature as that term is described above in 38 C.F.R. § 3.340(b). Any opinions expressed must be accompanied by a complete rationale. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 4. After undertaking any development deemed essential in addition to that specified above, the RO should evaluate the veteran's entire disability picture with respect to service-connected heart disability and address the veteran's request for a permanent 100 percent schedular evaluation. If the benefit sought on appeal is granted to the veteran's satisfaction, the veteran and his representative should be provided with a statement of the case containing adequate reasons and bases for the decision, and an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1998).