Citation Nr: 0811760 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 94-45 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for post operative residuals of mitral valve prolapse, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The veteran had active service from September 1972 to April 1975. This appeal to the Board of Veterans' Appeals (Board) arose from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark , New Jersey , which continued the veteran's then 30 percent rating. An October 1997 rating decision granted an increase from 30 percent to 60 percent, effective retroactively to June 15, 1994, the date the veteran's claim was received. The veteran continued his appeal for an even higher rating. See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). The veteran appeared at two hearings: a Travel Board hearing in June 1996 before a Veterans Law Judge (VLJ) who is no longer at the Board, and a local hearing by video conference hearing in July 2005 before the undersigned VLJ, who will decide his appeal. See 38 C.F.R. § 20.707 (2007). Transcripts of the testimony of both hearings are associated with the claims file. A September 2003 rating decision denied entitlement to a total rating on the basis of individual unemployability. The veteran submitted a timely Notice of Disagreement in October 2003, and Statement of the Case was issued in November 2004. The claims file contains no indication that the veteran did not receive the November 2004 Statement of the Case, or any record that it was returned to VA by the U.S. Postal Service as undeliverable. Neither is there any record of the veteran having submitted a substantive appeal in response to the Statement of the Case. The Board notes a January 2005 Statement of Accredited Representative (VA Form 646), but it does not note the November 2004 Statement of the Case, or otherwise request that it be considered a substitute substantive appeal. Thus, the issue of entitlement to individual unemployability is not before the Board and will not be discussed in the decision below. See 38 C.F.R. §§ 20.200, 20.201 (2007). This appeal has been remanded on three prior occasions-in December 1996 for additional development, April 2005 so that the July 2005 hearing could be scheduled and, most recently, in November 2005 for additional development. The RO completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. FINDINGS OF FACT 1. For the period June 15, 1994, to January 11, 1998, the veteran's post operative residuals of a mitral valve replacement were not manifested by clinical and X-ray confirmation of definite cardiac enlargement; dyspnea on slight exertion; rales, pretibial pitting at the end of the day, or other definite signs of beginning congestive heart failure and preclusion of more than sedentary labor. 2. For the period since January 12, 1998, the veteran's post operative residuals of a mitral valve replacement have not been manifested by evidence of chronic congestive heart failure; or, workload of three METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope; or, left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSION OF LAW Since June 15, 1994, the requirements have not been met for a rating in excess of 60 percent for post operative residuals of a mitral valve replacement. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2007); 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7016 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, have been met in this pre- VCAA claim. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the veteran in November 2005 and March 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA informed the veteran of the need to submit all pertinent evidence in his possession and, in the March 2007 letter, provided adequate notice of how disability ratings and effective dates are assigned. The Board is aware of the Court's recent decision in Vazquez- Flores v. Peake, 22 Vet.App. 37 (2008). The March 2007 letter informed the veteran that disability ratings of 0 to 100 percent may be assigned, and that evidence of the nature and severity of his symptoms and how they impact his life and employment may be submitted. It also informed him that the evidence could consist of official records and lay statements. He was informed of the need to submit all pertinent evidence in his possession. While the March 2007 letter did not inform the veteran of the precise rating criteria for a 100 percent rating, it did refer him to the November 2005 letter, which in turn had referred him to the previous Statement of the Case and Supplemental Statements of the Case issued him, which contained all applicable rating criteria. Further, following the March 2007 letter, the claim was readjudicated, as shown in the October 2007 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a Statement of the Case Supplemental Statement of the Case, is sufficient to cure a timing defect). While the veteran did not receive full notice prior to the initial decision, after notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claim was readjudicated. The veteran was provided the opportunity to present pertinent evidence and testimony. The Board notes that he did not respond to either the November 2005 or the March 2007 letter. VA has fulfilled its duty to assist the veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. 38 C.F.R. § 3.159(c). In sum, there is no evidence of any VA error in notifying or assisting the veteran that reasonably affects the fairness of this adjudication. Finally, the Board has reviewed all the evidence in the veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Governing Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10 (2007). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Id. at 594. Where an increase in the level of a service-connected disability is at issue, however, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nonetheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield , 21 Vet. App. 505 (2007). The analysis in this decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating criteria for heart disorders were changed effective January 12, 1998. Under such circumstances, the regulation as it existed prior to the change is applicable to the veteran's claim for the period prior to the date of the regulatory change, and the revised regulation is applicable from the effective date of the change forward. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Analysis Historically, a September 1975 rating decision granted service connection for mitral valve prolapse. As already noted, the October 1997 rating decision assigned a 60 percent rating, retroactively to June 15, 1994. An October 1994 rating decision granted a temporary total rating of 100 percent from June 15, 1998, to January 1, 1999. In light of the October 1997 rating decision, the Board's review will focus solely on whether the veteran's post operative residuals of a mitral valve replacement has at any time during the appellate term manifested at the 100 percent rate. Under the prior criteria, mitral valve prolapse was rated analogously under 38 C.F.R. § 4.104, Diagnostic Code 7000 (valvular heart disease). See 38 C.F.R. § 4.20. Those criteria provided that x-ray confirmation of a 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 which precluded more than sedentary labor, warranted a 100 percent rating. 38 C.F.R. § 4.104 (1997). The veteran submitted his current claim for an increase shortly after receiving in-patient treatment at Mercer Medical Center . The late-April 1994 Discharge Summary notes that an electrocardiogram conducted shortly after his admission showed evidence of a near symmetrical T-wave inversion over the inferior leads with a pattern of frequent ventricular ectopy, including bigeminy. Chest X-ray showed no cardiomegaly, congestive failure, or focal pneumonia. The examiner noted that the polarization abnormalities were new when compared with a February 1994 electrocardiogram. After an overnight regimen of nitroglycerine, the veteran did not experience further chest pain, as well as a complete resolution of his ventricular ectopic activity. Physical examination revealed no clubbing, pedal pulses were well felt, and there was no brachiopedal delay. Carotids had normal upstrokes, there were no bruits or jugular venous distention. Blood pressure was 110/70. The impression was transient inferior subendocardial ischemia, possible underlying coronary artery disease, ventricular ectopy, and mitral valve prolapse. There was no pericardial or pleural effusion. The mitral valve was thickened with positive left ventricle hypertrophy. The veteran was admitted again in early May 1994, and the chest X-ray taken showed cardiomegaly. The final diagnoses were, atypical chest pain, probable chest wall pain; mitral valve prolapse with myxomatous degeneration and mitral regurgitation; and, ventricular ectopy secondary to the mitral valve prolapse. The veteran's symptomatic bradycardia was deemed secondary to his use of Lopressor. At a July 1994 VA examination, the veteran told the examiner that his symptoms had worsened in then recent months. The examiner noted the earlier admissions at Mercer Medical Center , and that a heart attack was ruled out in each instance, as well as the echocardiogram results. Examination revealed an irregular pulse of 66 per minute and blood pressure of 140/60. There was no jugular distention, lungs were clear, and the veteran's extremities showed no signs of edema or significant swelling of the finger joints or knees. Also noted was a June echocardiogram that showed slight enlargement of the left atrium but no pericardial or pleural effusion, and a normal ejection fraction. At an exercise stress test conducted in August 1996, the veteran achieved 57 percent of his predicted heart rate-102 beats per minute. The test was stopped due to fatigue and dizziness, but he did not experience angina during the test, though he did complain of atypical chest pain. Blood pressure response was normal. There were no diagnostic ST-T changes noted, but frequent premature ventricular contractions and couplets of premature ventricular contractions were observed. The veteran achieved a workload of 10 METS. The stress echocardiogram part of the test was negative for ischemia at 10 METS. A resting two-dimensional echo showed mild dilated left ventricle with preserved systolic function, and an ejection fraction of 50 - 55 percent. An August 1996 Holter monitor revealed frequent premature ventricular contractions and runs of nonsustained ventricular tachycardia. The veteran presented for admission again in February 1997 at Deborah Heart and Lung Center , New Jersey . The examiner, Dr. Sharim, noted the prior hospitalizations and diagnostic tests. He noted the veteran's positive history for atypical chest pain associated with shortness of breath when he experienced tachy palpitations, which were often brought on by exertion and relieved by rest. Physical examination revealed no jugular venous distention, normal carotid upstrokes, and cardiac examination revealed no murmurs or gallops. Abdominal examination revealed no organomegaly, and there was no peripheral edema. An echocardiogram showed an ejection fraction of 50 to 55 percent. Dr. Sharim's records note his treatment of the veteran from August 1996, and none of his treatment notes show symptoms that would approximate or meet the criteria for a 100 percent rating under the prior criteria. The February 1997 VA examination report essentially notes the results of the veteran's hospitalization of that same month. Physical examination revealed no active pathology, and the chest X-ray was normal. In May 1997, the RO requested a medical review of the claims file and an opinion as to the nature and extent of the veteran's heart disability. The examiner noted that the arrhythmias induced on the electrocardiogram studies were of a serious nature, and opined that the veteran might be able to tolerate mild manual labor. It was primarily on this report that the October 1997 rating decision relied for increasing the veteran's rating from 30 percent to 60 percent. As shown by the evidence set forth above, the veteran's mitral valve prolapse did not meet or approximate the criteria for a 100 percent rating under the prior criteria. His mitral valve prolapse was not manifested, and has not been manifested by any pretibia pitting or signs of congestive heart failure. Further, as noted by the VA examiner in May 1997, he was deemed able to possibly tolerate mild manual labor. Thus, just prior to the effective date of the current criteria, the veteran's mitral valve prolapse more nearly approximated the assigned 60 percent rating. 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7000 (1997). A March 1998 report of the Social Security Administration notes the veteran's application for disability benefits was denied. That agency noted the veteran's primary diagnosis was cardiomyopathy, and his secondary diagnosis as valvular heart disease. The Administrative Judge who heard the veteran's appeal determined that the veteran's capacity for sedentary work was not compromised by his non-exertional limitations. In mid-June 1998, the veteran underwent open heart surgery to replace his mitral valve. While recovering in late June 1998, he contracted left lower lobe pneumonia. Physical examination during his inpatient treatment revealed no edema of his extremities. An echocardiogram revealed an ejection fraction of 40 to 45 percent. The current rating criteria became effective on January 12, 1998. In light of his mitral valve replacement, his disability is now considered under 38 C.F.R. § 4.104, Diagnostic Code 7016 for heart valve replacement (prosthesis). Parenthetically, the Board notes that the criteria are identical for both Diagnostic Codes 7000 and 7016. The criteria of Diagnostic Code 7016 provide that to warrant a 100 percent rating, there must be symptoms of chronic congestive heart failure; or, a workload of 3 METs or less that 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. One MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs 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. Id. , Note 2 (2007). While the veteran indicated at both of his hearings that his symptoms had worsened, the probative medical evidence of record does not show that post operative residuals of a mitral valve replacement to have increased in severity to an extent that his disability would meet or approximate a 100 percent rating. Further, while his ejection fraction has indeed lessened since 1994, it has not fallen below 40 percent, i.e., well above the less than 30 percent required for a 100 percent rating, and the veteran's METS workload of record has never fallen near 3 METS. The March 2001 VA examination report notes the veteran had not required hospitalization since his mitral valve replacement. Examination revealed no edema of the extremities, and an echocardiogram revealed an ejection fraction of 40 percent. He did not report for a scheduled stress test. The examiner opined in a September 2001 note that he deemed the veteran as still employable. At the January 2003 VA examination, the veteran denied ever having had congestive heart failure. Examination revealed no edema of the extremities and normal pulses. A June 2003 stress echocardiogram conducted at Capital Health Systems revealed the veteran to achieve normal exercise tolerance for his age-75 percent of predicted maximum. No ischemic ST changes were suggested, and no angina was induced. A workload of 14 METS was achieved, and his ejection fraction was 53 percent. A November 2003 report of the veteran's private physician at Capital Cardiology noted that the veteran had done reasonably well since his mitral valve replacement. On physical examination that day, no signs of edema were noted. The examiner noted that the veteran was stable from a cardiac point of view, and that his then recent stress test was satisfactory with good exercise tolerance. The examiner also noted that, in light of the veteran's examination and test results, he saw nothing to preclude the veteran's return to school/work as desired by the veteran. The August 2004 VA examination report notes that physical examination revealed no pedal edema. The examiner noted a stress test on which no reversible ischemia was noted and an ejection fraction of 59 percent. The noted December 2003 chest X-ray showed no evidence of active disease. Given a 59 percent ejection fraction, the examiner estimated the veteran's METS as about 7, and he opined that the veteran was employable. One of the most recent seminal events for the veteran was his admission in March 2005. His VA treatment records, however, note his acute symptoms as due to alcohol, as well as illicit substance, abuse. An EKG was noted as unremarkable. The June 2007 VA examination report notes the examiner reviewed the claims file as well as all of the veteran's electronic records. The veteran told the examiner that he still got short of breath on exertion-after around three blocks of walking or one flight of stairs. He denied any significant cardiac symptoms, such as chest pain, dizziness, or syncopal episodes. Physical examination revealed no cyanosis, clubbing, or edema. Blood pressure was 120/60. An echocardiogram revealed an ejection fraction of 40 to 45 percent. The examiner estimated the veteran's clinical METS to be 7. In sum, the totality of the probative medical evidence shows the veteran's post operative residuals of mitral valve prolapse have not at any time since June 15, 1994, been manifested with congestive heart failure, pretibial pitting, a workload of three METS or less, or an ejection fraction of less than 30 percent. Given this factor, the Board finds that since June 15, 1994, the manifestations of this disorder have more nearly approximated his currently assigned 60 percent rating-be it either under the prior or the current criteria. 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997); 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7016 (2007). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the veteran's claim, however, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extra-Schedular Consideration The RO determined that the evidence of record did not support submitting the veteran's claim for extra-schedular consideration. In exceptional cases, where the rating schedule is deemed inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the applicable criteria, an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2007). The Board is precluded from granting an increased rating on an extra-schedular basis in the first instance. 38 C.F.R. § 3.321(b)(1) (2007); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board may, however, determine whether a particular claim merits submission for an extra-schedular evaluation. Brannon v. West, 12 Vet. App. 32, 35 (1998); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Further, where the RO has considered the issue of an extra-schedular rating and determined it inapplicable, the Board is not specifically precluded from affirming a RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) for an extra-schedular rating. Bagwell, 9 Vet. App. at 339. In this case, the Board finds no basis on which to disagree with the determination that there is nothing in the record to distinguish this case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Thus, the currently assigned 60 percent schedular rating adequately compensates, as far as can practicably be determined, the average impairment of earning capacity due to the veteran's service-connected post-mitral valve replacement disability. See 38 C.F.R. § 4.1. There is no evidence revealing frequent periods of hospitalization, as the veteran has not been hospitalized specifically for his heart disorder since 1998. Therefore, in the absence of such factors, the Board finds that the criteria for submission for consideration of an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. ORDER Entitlement to a rating higher than 60 percent for post operative residuals of a mitral valve replacement since June 15, 1994, is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs