Citation Nr: 1237168 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-26 416 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to a rating higher than 10 percent for neurocardiogenic syncope. WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from June 1998 to May 2000. This appeal to the Board of Veterans' Appeals (Board) is from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The Veteran's neurocardiogenic syncope is manifested by lightheadedness, dizziness, and syncope at a workload of 7.7 metabolic equivalents (METs), but without evidence of cardiac hypertrophy or dilatation on echocardiogram, electrocardiogram, or X-ray. CONCLUSION OF LAW The criteria are not met for a rating higher than 10 percent for the service-connected neurocardiogenic syncope. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7011 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107. To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising her of her and VA's respective responsibilities in obtaining this supporting evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining this evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VCAA notice errors are not presumptively prejudicial, rather, must be judged on a case-by-case (fact and situation specific) basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but, above and beyond this, also showing how it is unduly prejudicial, meaning outcome determinative of her claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). A notice letter was sent to the Veteran in February 2009, so prior to initially adjudicating this claim in March 2009, thus, in the preferred sequence. That letter satisfied the notice requirements of 38 C.F.R. § 3.159(b)(1), including in terms of notifying her of the information and evidence required to substantiate this claim for an increased rating and of her and VA's respective responsibilities in obtaining this supporting evidence. VA also fulfilled its duty to assist her with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing her. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO obtained her service treatment records (STRs), VA outpatient treatment records from the local VA Medical Centers (VAMCs) in Biloxi and Jackson, Mississippi, and private treatment records. She also had VA compensation examinations to assess and reassess the severity of her disability, with the most recent one in December 2010. Only if the record is inadequate or there is a suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a). The mere passage of time since an otherwise adequate examination does not, in and of itself, necessitate another examination simply as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). There is no indication or suggestion this disability has worsened to a greater extent since that most recent VA examination as to, in turn, require another examination. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board therefore is satisfied that VA has provided all assistance required by the VCAA concerning this claim. 38 U.S.C.A. § 5103A. In deciding this claim, the Board has reviewed all of the relevant 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 her or obtained on her behalf be discussed in exhaustive 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). II. Analysis Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established, VA must address the evidence concerning the state of the disability from one year before the claim for an increase was filed until VA makes a final decision on the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In this temporal focus, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans Claims (Court/CAVC) has held that consideration of the appropriateness of a staged rating is required for increased rating claims, irrespective of whether it is an initial rating at issue (see Fenderson v. West, 12 Vet. App. 119, 125-26 (1999)) or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Here, in an April 2005 rating decision, service connection was granted for neurocardiogenic syncope and an initial 10 percent rating assigned. The Veteran filed the present claim for increase in July 2008 when she submitted a statement to the RO alleging her disability had worsened. The RO has evaluated the disability under DC 7099-7011 as analogous to ventricular arrhythmias. When an unlisted condition is encountered, it may be rated under the diagnostic code for a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Under DC 7011, a 10 percent rating is assigned when the disability results in a workload of greater than 7 METs, but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required. A higher 30 percent rating is assigned when the disability results in 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 dilation on electrocardiogram, echocardiogram, or X-ray. A rating of 60 percent is assigned when a Veteran has had more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A rating of 100 percent is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7011. Other DCs for evaluating diseases of the heart have similar rating criteria. See 38 C.F.R. §§ 4.100, 4.104, DCs 7000-7007, 7015-7020. Additionally, DC 7011 and the other DCs allow for an assignment of a 100 percent rating when criteria are met for each specific disease, e.g., ventricular arrhythmias, valvular heart disease, endocarditis, etc. However, in the Veteran's case, those specific types of manifestations are not shown by the evidence. One MET 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, so contraindicated, 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). Through submitted statements and hearing testimony, including from her family, the Veteran states that her disability results in dizziness, lightheadedness and vertigo. This in turn results in the feeling that she will faint or she actually does. According to her, two such incidents occurred in May and June 2008. She went to the emergency room at St. Dominic Jackson Memorial Hospital after the June 2008 fainting spell and discharge instructions indicated she had an episode of syncope. In March 2009, she had a VA heart examination in connection with this claim. Although the claims file was not available for review, the examiner took a medical history from her and reviewed her VA treatment records. The examiner noted a history of neurocardiogenic syncope with a primary symptom of dizziness. The Veteran reported the June 2008 incident of blacking out and that she experiences dizziness on a daily basis. The dizziness primarily occurs when she stands up quickly and usually goes away after a few minutes. On examination, her heart had a regular rhythm without a murmur. An echocardiogram showed normal left ventricular function and, per a stress test, the METs were 7.7. Another VA heart examination was performed in December 2010. The examiner reviewed the claims file and noted an accurate medical history. The Veteran reported that she had not undergone cardiologic testing since the March 2009 examination and that she is not followed by a cardiologist. The examiner noted that her issues seem more related to mental health disorders. Symptoms included dizziness and lightheadedness occurring several times weekly. The Veteran had not been incapacitated by her symptoms complex and she had not missed workdays due to fainting. Additionally, the examiner noted that she does not suffer from exertional chest pain or dyspnea or have a history of congenital or valvular heart disease. She also has no history of stroke, heart, peripheral occlusive event, coronary artery disease, peripheral artery disease, or dysrhythmia. Notably, the examiner stated that her METs are not limited. Examination revealed a heart with regular rhythm and rate without murmur, rub or gallop. The examiner diagnosed neurocardiogenic (vasovagal syncope) and commented that there is no evidence of structural heart disease or any signs or symptoms of a malignant cardiac arrhythmia. The examiner also explained there had been no change in the severity of the Veteran's service-connected syncope, but that symptom assessment has been complicated by her mental health issues and anemia. Treatment records are in the claims file from the Biloxi and Jackson VAMCs. Although neurocardiogenic syncope is noted in her problem history, these records do not provide additional details concerning her disability that were not already set forth in the reports of her VA compensation examinations. So based upon this evidence of record, the Board finds that her service-connected neurocardiogenic syncope does not warrant a rating higher than 10 percent under DC 7011 or the other similar DCs for evaluating heart disease. As explained, to warrant a higher disability rating, it would need to be shown that her disability not only causes dyspnea, fatigue, angina, dizziness, or syncope, but also that it results in a workload limitation of greater than 5 METs but not greater than 7 METs, or that there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. Her METs measurement was 7.7 during her March 2009 VA compensation examination, so exceeding this maximum limit of 7 METs. Additionally, the December 2010 VA examiner expressly stated that her METs were unlimited, so certainly higher than required for a rating greater than 10 percent. Moreover, there is no evidence she has had cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray as otherwise required for the higher 30 percent rating. Furthermore, the evidence does not show there are even worse METs measurements or left ventricular dysfunction that would warrant an even higher rating. The Veteran also argues that an evaluation as a neurological disorder may be appropriate for her disability. Along these lines, the RO considered whether a rating was warranted under DC 8108 (for narcolepsy) or DC 8911 (for epilepsy), both of which are evaluated on the basis of seizures. See 38 C.F.R. § 4.124. The Board does not find that a rating is warranted under these other DCs, however, as seizures simply have not been shown by the evidence. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of DC should be upheld if supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). The evidence reflects that the primary symptoms of her disability are dizziness and syncope, both of which are expressly set forth, so contemplated, in the rating criteria for DC 7011 and the other similar DCs for evaluating heart disease. Thus, the 10 percent rating already considers the specific symptoms she has reported and those the VA examiners have observed and recorded. In sum, there is no basis for a schedular rating higher than 10 percent for the service-connected neurocardiogenic syncope. The Veteran has not met the requirements for a higher schedular rating for this disability at any time since one year prior to filing this increased-rating claim, so the Board also cannot "stage" this rating. See Hart, 21 Vet. App. at 505 (indicating the relevant temporal focus is from one year before the claim for a higher rating was filed until VA makes a final decision on the claim). See also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). And since, for the reasons and bases discussed, the preponderance of the evidence is against this claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board's determination not to assign a higher rating for this disability is based upon consideration of applicable rating provisions. It should also be pointed out, however, that there is no suggestion the Veteran's neurocardiogenic syncope is so exceptional or unusual as to render impractical the application of the regular Rating Schedule standards and warrant extra-schedular consideration. See 38 C.F.R. § 3.321(b)(1). As already explained, the particular symptoms of this disability (syncope, dizziness, etc.) are contemplated by the schedular criteria. Without suggestion her disability picture is not contemplated by the Rating Schedule, referral for a determination of whether her disability picture requires the assignment of an extra-schedular rating is unwarranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER The claim for a rating higher than 10 percent for the neurocardiogenic syncope is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs