Citation Nr: 0813966 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 04-13 219 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE Entitlement to a disability rating greater than 10 percent for cardiomegaly. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The veteran served on active duty from December 1981 to July 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 determination by the Department of Veterans Affairs Regional Office in Baltimore, Maryland. In May 2005, the Board remanded the present matter to the RO via the Appeals Management Center (AMC) in Washington D.C. for due process considerations, to obtain medical records that were not yet of record, and to obtain a new VA medical examination in order to determine the severity of the veteran's service-connected cardiomegaly. Those actions completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The veteran does not have a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for cardiomegaly have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.104, Diagnostic Code 7020. REASONS AND BASES FOR FINDING AND CONCLUSION Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. This is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski , 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Under the Rating Schedule, cardiomyopathy is evaluated by application of the Diagnostic Code 7020. Under this code, a 10 percent disability rating is awarded for cardiomegaly manifested by a workload of greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or requiring continuous medication. The next higher, 30 percent, rating requires a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. 38 C.F.R. § 4.104, Diagnostic Code 7020. The veteran's service medical records (SMRs) reflect diagnosis by echocardiogram and treatment for nonischemic dilated cardiomyopathy with medication. A March 2002 SMR reflects a normal stress study, providing limited evidence against this claim. In an event, a rating decision in April 2003 granted service connection for cardiomegaly at an evaluation of 10 percent. The veteran has asserted that he merits a higher initial rating for this disability. The veteran was afforded a VA medical examination in November 2002. On physical examination, the veteran's pulse was 70 and regular, and sitting blood pressure was 117/70. Electrocardiogram was normal and chest X-ray revealed borderline heart size, providing more evidence against this claim. Diagnosis was cardiomegaly on echocardiogram, with no established etiology. At the August 2004 hearing before the Board, the veteran stated that he had begun taking additional medication, Metoprolol, since the November 2002 examination. To address the veteran's concerns, in May 2005, the Board remanded the claim in order to schedule the veteran for a new VA examination to determine the severity of his cardiomegaly. In September 2006, the veteran was afforded a second VA medical examination. The examiner noted that it would be difficult for the veteran to do an accurate stress exercise test to determine the level of MET activity, because the veteran has conditions of bronchial asthma and chronic knee problems. The examiner stated, "[j]udging from the history that [the veteran] gives, his MET level would be between 8 and 10 METs without any significant recent change." The VA examiner ordered a chest X-ray, electrocardiogram, and echocardiogram to more accurately determinethe veteran's cardiac output and systolic function. The chest X-ray and electrocardiogram were normal. The echocardiogram was normal with an ejection fraction estimated at 55%, which the examiner noted is normal. All results above, as well as the opinion of the VA examiner would, provide more evidence against this claim, clearly indicating that the higher criteria is not met. The veteran is currently rated at 10 percent disabled for cardiomegaly. The next higher, 30 percent, rating for cardiomegaly requires a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The Board notes that the September 2006 VA examination shows no evidence of cardiac hypertrophy or dilatation as the electrocardiogram, echocardiogram, and X-ray were all normal. In summary, the schedular criteria for the next higher, 30 percent, rating for cardiomegaly are not met, and such rating is not warranted. The facts and examinations cited above provide negative evidence against the veteran's claim and show that his cardiomegaly does not meet the diagnostic criteria for a 30 percent evaluation. Upon a complete review of the evidence of record, the Board finds no basis to award a disability rating greater than 10 percent for the veteran's cardiomegaly. 38 C.F.R. § 4.7. Since the present appeal arises from an initial rating decision which established service connection and assigned an initial disability rating, it is not only the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that the criteria for a 30 percent evaluation have not been met at any time to warrant a staged rating for cardiomegaly. Simply stated, the Board does not find evidence that the veteran's disability evaluation should be increased for any separate period based on the facts found during the appeal period. The evidence of record from the day the veteran filed his claim to the present supports the conclusion that he is not entitled to increased compensation during any time within the appeal period. Finally, the Board finds no reason to refer the case to the Compensation and Pension Service for consideration of an extra-schedular evaluation under 38 C.F.R. § 3.321(b). That is, there is no evidence of exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, to suggest that the veteran is not adequately compensated by the regular rating schedule. VAOPGCPREC 6-96. Accordingly, the Board finds that the preponderance of the evidence is against a rating greater than 10 percent for cardiomegaly. 38 C.F.R. § 4.3. Duty to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the veteran is challenging the initial evaluation assigned following the grant of service connection. In Dingess, the Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in October 2002 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that the appellant has demonstrated an understanding of the evidentiary requirements by submitting statements in support of the claim. Based upon the above, the Board finds that a reasonable person could be expected to understand from this notice what was needed to substantiate the claim. As such, the Board finds that there have been no notice errors that have resulted in any prejudice to the appellant or affected the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records and VA treatment records. The veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. The appellant was afforded VA medical examinations in November 2002 and September 2006. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A disability rating higher than 10 percent for cardiomegaly is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs