Citation Nr: 1124591 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-27 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 60 percent for atrial fibrillation with history of heart block pacemaker implant. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Associate Counsel INTRODUCTION The Veteran served on active military service from October 1972 to October 1992. The appeal comes before the Board of Veterans' Appeals (Board) from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which increased the rating for atrial fibrillation with history of heart block pacemaker implant to 60 percent effective July 17, 2007. As the 60 percent rating granted for a heart disability did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT Atrial fibrillation with history of heart block pacemaker implant is manifested by metabolic energy equivalents (METs) ranging from five to four, resulting in dyspnea and some fatigue and dizziness with moderate exertion, including walking up and down stairs, lifting approximately 50 pounds, raking leaves, doing machine work, and walking at three to four miles per hour. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for atrial fibrillation with history of heart block pacemaker implant have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7016 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (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 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, in an August 2007 letter the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran to submit evidence from medical providers, statements from others who could describe their observations of his disability level, and his own statements describing the symptoms, frequency, severity and additional disablement caused by his disability. An October 2008 letter also advised the Veteran of the necessity of providing medical or lay evidence demonstrating the level of disability and the effect that the disability has on his employment. The notice included examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing entitlement to a disability evaluation. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). The case was last adjudicated in February 2011. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including VA treatment records from the Durham and Fayetteville VA Medical Centers, VA examination reports, private treatment records, and lay statements. VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis 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; assigning the higher rating where there is a question as to which of two evaluations apply and 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. 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 a veteran's condition. Schafrath, 1 Vet. App. at 594. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, 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 the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 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 Veteran 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). A December 2007 rating decision increased the assigned rating for atrial fibrillation with a history of heart block pacemaker implant to 60 percent pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7016. The Veteran contends that this heart disability is more severely disabling and that the increased rating did not consider the effect of his treating medication or medical treatment at the Durham VA Medical Center. 7016 Heart valve replacement (prosthesis): Rating For indefinite period following date of hospital admission for valve replacement 100 Thereafter: 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 100 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 60 38 C.F.R. § 4.104, Diagnostic Code 7016 (2010). 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. 38 C.F.R. § 4.104, Note 2. In a September 2006 Fayetteville VA primary care note, the Veteran had no new complaints and denied any weakness, chest pain (angina), or shortness of breath (dyspnea). Active medications included Warfarin (Coumadin) and Cardizem. On examination he appeared in no obvious distress, and his respiration was even and unlabored. The assessment noted that he had preserved left ventricular ejection fraction with left ventricular hypertrophy. In a July 2007 Durham VA cardiology note, the Veteran stated that he feels his heart racing one to two times per day, but it did not impact his lifestyle or full-time employment, including overtime work. In a VA heart examination report dated in September 2007, he stated that he notices a heart flutter at least five days a week, particularly when he is going up stairs. He will be short of breath and if he rests, the flutter improves. He continued to take Coumadin and Diltiazem (Cardizem). His MET level was documented as five on examination. He continued to work and was capable of doing his daily activities. Reported objective findings included the following: the heart may be somewhat increased in size by percussion; no evidence of congestive heart failure at present; and the lungs revealed good breath sounds. An associated chest x-ray report indicated that the heart and mediastinum appeared normal. The impression was normal chest. In Durham VA cardiology notes dated in March 2008 for follow-up on atrial fibrillation episodes, the Veteran indicated that he can tell when he is in paroxysmal atrial fibrillation (PAF) because he gets indigestion. The cardiologist remarked in an addendum that the Veteran was a difficult historian, but did seem to note when he goes into atrial fibrillation. He also indicated that the Veteran was minimally symptomatic, but believed that his symptoms were likely underreported based on his interactions with him. In an August 2008 Durham VA cardiology note, the Veteran reported palpitations, dyspnea on exertion, and presyncope; he denied angina or heart failure symptoms. The assessment included continued symptoms of paroxysmal atrial fibrillation affecting quality of life and endurance during his manual labor occupation. In a February 2009 Durham cardiology note for PAF management, the Veteran reported current fatigue. He denied chest pain, symptoms of congestive heart failure, syncope or presyncope, or palpitations. He described his current activity level to include walking up and down stairs lifting approximately 50 pounds in his full-time employment as a boiler plant operator. In a follow-up cardiology note in July 2009, he described the same activity level as in February 2009 and denied any complaints, including any fatigue. In a VA heart examination report dated in January 2011, the Veteran denied any history of congestive heart failure, angina, or syncope, but did identify having a history of dizziness, fatigue, and dyspnea on moderate exertion. On physical examination, there was no evidence of congestive heart failure or abnormal breath sounds. The Veteran reported a METs score of four and feeling "winded" when raking leaves, doing machine work, or walking at three to four miles per hour. He continued to work full-time and reported missing one week of work in the past year due to doctor appointments or feeling poorly and lightheaded. He indicated that he has to modify his activities because he gets short of breath and easily fatigued. The impression of an associated chest x-ray report was borderline cardiomegaly with pacemaker. The examiner indicated that the claims file was not available for review, but she reviewed the medical records. The above medical and lay evidence reflects that the Veteran has an estimated METs level ranging from five to four, resulting in dyspnea and some fatigue and dizziness with moderate exertion, including walking up and down stairs lifting approximately 50 pounds, raking leaves, doing machine work, and walking at three to four miles per hour. These findings are adequately addressed by the awarded 60 percent disability rating. A higher, 100 percent, rating is not warranted because there is no objective or subjective evidence of chronic congestive heart failure; a 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. For all the foregoing reasons, the Board finds that there are no objective medical findings or persuasive lay evidence that would support the assignment of a rating in excess of 60 percent for atrial fibrillation with history of heart block pacemaker implant. Therefore, entitlement to an increased rating for that disability is not warranted, and the claim is denied. The Board has considered staged ratings under Hart v. Mansfield, 21 Vet. App. 505 (2007), but concludes that they are not warranted because his symptomatology has been reported as stable on medications without objective or subjective evidence of chronic congestive heart failure or a workload of three METs or less. As a final matter, the Board has also considered whether the Veteran's atrial fibrillation with history of heart block pacemaker implant presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for a higher rating for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 60 percent for atrial fibrillation with history of heart block pacemaker implant is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs