Citation Nr: 0810062 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 01-03 226 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for a cardiac pacemaker implantation, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The veteran served on active duty from September 1975 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1999 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The RO's May 1999 rating decision granted an increased disability rating of 100 percent, effective from January 20, 1999 to March 31, 1999, followed by a 10 percent disability rating, effective from April 1, 1999, for the veteran's service-connected cardiac pacemaker implantation. In October 1999, the veteran filed a notice of disagreement with this decision. Later that same month, the RO issued a statement of the case. In December 2000, a supplemental statement of the case was issued by the RO, and in January 2001, the veteran filed a timely substantive appeal. In September 2002, the Board remanded this matter for the RO to schedule the veteran for his requested hearing before the Board. In April 2003, the veteran testified at a videoconference hearing at the RO before the Board. During the course of this appeal, the RO issued a June 2005 rating decision which granted a 100 percent disability rating for the veteran's cardiac pacemaker implantation from August 11, 2004 to October 31, 2004, followed by a 10 percent disability rating, effective from November 1, 2004. In December 2003, and again in November 2006, the Board remanded this matter for additional development, which has since been completed. FINDINGS OF FACT The veteran's cardiac pacemaker implantation has been manifested by no more than four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by echocardiogram (ECG) or Holter monitor; a workload of approximately 10 metabolic equivalents (METs) results in dyspnea, angina, dizziness, or syncope; and no evidence of cardiac hypertrophy or dilatation on electrocardiogram (EKG), ECG, or x-ray examination. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a cardiac pacemaker implantation have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§4.104, Diagnostic Codes 7010, 7011, 7015, 7018 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has certain notice and assistance requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the present case, the unfavorable rating decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current § 5103(a) requirements in 2000. Where, as here, the 38 U.S.C.A. § 5103(a) notice was not mandated at the time of the initial rating decision, the RO did not err in not providing such notice. Letters sent by the RO after the initial rating decision, dated in March 2001, November 2002, May 2004, and December 2006, notified the veteran as to the requirements needed to satisfy his claim for an increased disability rating for his cardiac pacemaker implantation. Vazquez-Flores v. Peake, No. 05- 0355, (U.S. Vet. App. January 30, 2008); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim). The December 2006 letter from the RO notified the veteran of effective dates and the assignment of disability evaluations. Moreover, there is no prejudice to the veteran because the preponderance of the evidence is against an increased evaluation for his service-connected cardiac pacemaker implantation. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, No. 05- 0355 (U.S. Vet. App. January 30, 2008). Further, if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Vazquez-Flores, slip op. at 5-6. In this case, letters satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) were sent to the veteran in May 2004 and December 2006. These letters informed the veteran of the evidence required to substantiate his claim and of and of his and VA's respective duties for obtaining evidence. The December 2006 letter specifically requested evidence showing the impact of the veteran's condition and symptoms on his employment. He was also asked to submit evidence and/or information in his possession to the RO. Even if the May 2004 and December 2006 VCAA letters were found not to meet the requirements of Vazquez-Flores, thereby creating a presumption of prejudice, this presumption has been overcome for the reasons discussed below. In this case, the veteran was provided with the requirements of the specific statutes used in evaluating his condition in the Board's December 2006 remand. Accordingly, the veteran can be expected to understand what was needed to support his claim. Moreover, his statements and testimony submitted in support of his claim demonstrate his having actual knowledge in understanding that he needs to be worse to support his claim. Through his statements and testimony, the veteran indicated that his pacemaker and heart medications have not taken care of erratic heart rate and that it has left him feeling week and easily fatigued. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. Therefore, the presumption of prejudice is rebutted. For this reason, no further development is required regarding the duty to notify. For the reasons addressed above, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In addition, the duty to assist the appellant has also been satisfied in this case. The RO has obtained the veteran's service medical records, VA medical treatment records, and his identified private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran was provided with multiple VA examinations to ascertain the severity of his cardiac pacemaker implantation. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Historically, the veteran was granted service connection for cardiac pacemaker implantation by a May 1998 rating decision. The RO assigned a noncompensable disability rating, effective October 1, 1997; a 10 percent disability rating, effective from January 21, 1998; a 100 percent disability rating, effective from January 28, 1998; and a 10 percent disability rating, effective April 1, 1998. In April 1999, the veteran filed his current claim seeking a disability rating in excess of 10 percent for his service- connected cardiac pacemaker implantation. On his claim form, VA Form 21-4138, he indicated that he was now being treated with beta blockers for this condition. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2007). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2007). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran is shown to have initially received a cardiac pacemaker implantation in May 1998. An ECG, performed in June 1998, noted findings of a normal left ventricular systolic function, with a calculated ejection fraction of 57.8 percent. X-ray examination of the chest, performed in January 1999, revealed the heart to be within the upper limits of normal in size. An EKG, performed in February 1999, noted findings of a normal sinus rhythm and rate, and possible left atrial enlargement. X-ray examination of the chest, performed in October 2000, revealed the heart to be of normal size. A treatment report, dated in February 2001, noted the veteran's complaints of intermittent "heart racing" episodes occurring approximately three times a week, and lasting approximately one minute for the past two years. The veteran denied any associated chest pain, shortness of breath, dizziness, syncope, diaphoresis, or numbness. A statement from the veteran, dated in April 2001, noted that his pacemaker implantation had tremendously cut down on his active lifestyle. A VA examination for arrhythmias was conducted in August 2001. The report noted the veteran's history of pacemaker implantation in January 1998. For the past year, the veteran reported having occasional palpitations associated with occasional nausea, shortness of breath, and light-headedness. He indicated that this occurred about once or twice per week, and that it was addressed by placing the veteran on beta blocker therapy. The veteran also reported occasional chest pain with exertion. Physical examination revealed the veteran's blood pressure to be 115/75. His heart had an irregular rhythm without any murmurs or rub. There was no apical displacement, and no parasternal heaves. The report concluded with an impression of history of arrhythmia and status post pacemaker implantation. In April 2003, a videoconference hearing was conducted before the Board. At the hearing, the veteran testified that his pacemaker causes his heart to start racing at times for no particular reason. An ECG, performed in December 2004, revealed that the left ventricle was normal in size with mild concentric hypertrophy and preserved global systolic function. The report also noted an estimated left ventricle ejection fraction of 50 to 55 percent. In December 2004, a VA examination of the heart was conducted. The VA examiner noted that the veteran's claims folder had been reviewed. The examination report noted that an exercise stress test performed in March 2001 was normal. The December 2004 VA examination report, as well as the report of the March 2001 exercise test, failed to list the specific METs results. The report also noted findings of an ECG, performed December 8, 2004, which revealed an ejection fraction of 55 percent with mild mitral regurgitation in an otherwise normal study. The report concluded with an assessment of history of sick sinus syndrome with predominant bradycardia and syncope adequately treated with permanent pacemaker insertion; and normal exercise test and normal METs. A treatment record, dated in August 2005, noted that the veteran underwent a second exercise stress test. The report concluded with a summary of "normal". However, the report of this procedure failed to express the specific METs from this examination. In December 2006, the veteran underwent an ECG examination which revealed left atrial enlargement, mild; normal left ventricle systolic function; normal size of aortic root; normal morphology of four cardiac valves; normal right ventricle systolic function; no valvular flow abnormalities, and a calculated ejection fraction of 53 percent. In January 2007, a VA examination of the heart was conducted. The VA examiner noted that he had reviewed the veteran's claims folder in detail. The examination report noted that the veteran underwent placement of a cardiac pacemaker in January 1998, and that it was subsequently surgically moved to a new position one year later. The veteran indicated that he continued to have "heart fluttering" until another pacemaker was inserted in August 2004. Physical examination of the heart revealed regular rhythm and rate. The VA examiner further noted that the veteran denied angina, dizziness, or syncope. He reported fatigue at rest and complained of exertional dyspnea when climbing stairs. The VA examiner estimated that the veteran would develop dyspnea at 10 METs. The VA examiner further noted that the veteran had not had congestive heart failure, and there is no evidence of cardiac hypertrophy or dilation on ECG examination. The veteran's service-connected cardiac pacemaker implantation is rated as 10 percent disabling pursuant to Diagnostic Code 7018, used in rating implantable cardiac pacemakers. 38 C.F.R. § 4.104, Diagnostic Code 7018. A 100 percent rating is warranted for two months following hospital admission for implantation or reimplantation, and thereafter this disorder is evaluated as supraventricular arrhythmias, ventricular arrhythmias, or atrioventricular block at a minimum of 10 percent disability evaluation. See Id.; see also 38 C.F.R. § 4.104, Diagnostic Codes 7010, 7011, 7015 (2007). Under Diagnostic Code 7010, a 10 percent rating is assigned for supraventricular arrhythmias manifested by permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes/year of paroxysmal atrial fibrillation, or other supraventricular tachycardia documented by ECG or Holter monitor. A 30 percent rating is assigned for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than 4 episodes/year documented by ECG or Holter monitor. 38 C.F.R. § 4.104, Diagnostic Code 7010. Pursuant to Diagnostic Code 7011, used in rating sustained ventricular arrhythmias, a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatate on EKG, ECG, or x-ray. A 60 percent rating is warranted where there has been more than one episode of acute congestive heart failure in the past year, or; workload of 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, and a 100 percent rating is warranted for (1) indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator in place or (2) chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7011. Under Diagnostic Code 7015, concerning atrioventricular block, a 10 percent evaluation is warranted in cases where a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication or a pacemaker is required. The next highest rating, a 30 percent evaluation, is appropriate in cases where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or there is evidence of cardiac hypertrophy or dilatation on EKG, ECG, or x-ray. A 60 percent evaluation contemplates more than one episode of acute congestive heart failure in the past year; a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent. 38 C.F.R. § 4.104, Diagnostic Code 7015. After reviewing the veteran's claims folder, the Board finds that the evidence of record does not support a rating in excess of 10 percent for service-connected cardiac pacemaker implantation. Specifically, the Board finds that the veteran's cardiac pacemaker implantation has been manifested by no more than four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor; a workload of approximately 10 METs resulting in dyspnea, angina, dizziness, or syncope; no evidence of cardiac hypertrophy or dilation on EKG, ECG, or x-ray examination; and a left ventricular dysfunction with an ejection fraction in excess of 50 percent. Accordingly, entitlement to an increased disability rating for the veteran's service-connected cardiac pacemaker implantation is not shown. 38 C.F.R. § 4.104, Diagnostic Codes 7010, 7011, 7015 The December 2004 ECG report included findings that the veteran's left ventricle was normal in size with mild concentric hypertrophy and preserved global systolic function. Hypertrophy is "the enlargement of an organ or part due to the increase in size of the cells composing it; the overgrowth meets a demand for increased functional activity." McIntosh v. Brown, 4 Vet. App. 553, 556 (1993). This finding, however, is addressed by subsequent VA examinations of the heart. Specifically, the December 2004 VA examination of the heart described the findings on the December 2004 ECG as essentially a normal study. Moreover, the VA examiner, who conducted the veteran's most recent VA examination of the heart, concluded that there is no evidence of cardiac hypertrophy or dilation on ECG examination. Under these circumstances, the Board finds that there is no evidence of cardiac hypertrophy shown in the record. In reaching its decision herein, the Board notes that the veteran has previously been granted 100 percent disability ratings, from January 20, 1999 to March 31, 1999 and form August 11, 2004 to October 31, 2004. Thus, a higher rating is not warranted as a consequence of the veteran's pacemaker- related surgeries conducted on January 20, 1999 and August 11, 2004. See 38 C.F.R. § 4.104, Diagnostic Code 7018 (100 percent rating is warranted for two months following hospital admission for implantation or reimplantation.). In addition, the RO, in its unappealed June 2005 decision, has already granted service connection at a 10 percent disability rating for the veteran's post-surgical scar, pacemaker pocket, left chest, effective from August 11, 2004. Finally, the veteran has also been granted service connection for left median nerve impairment (minor side) associated with cardiac pacemaker implantation and limitation of motion of the left arm (minor side) associated with cardiac pacemaker implantation, both of which have been rated separately as 10 percent disabling. In support of the veteran's claim, the veteran's representative has argued that the veteran's relatively young age to require a pacemaker should be considered in rating his disability. However, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994). Because the preponderance of the evidence of record does not meet the criteria for a rating in excess of 10 percent for the veteran's service-connected cardiac pacemaker implantation at any time other than those periods previously granted by the RO, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also see also Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER A disability rating in excess of 10 percent for a cardiac pacemaker implantation is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs