Citation Nr: 1305686 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 08-33 817A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a rating in excess of 10 percent for status post (SP) supraventricular tachycardia (SVT) with atrial pacemaker placement and residual scar prior to May 21, 2012. 2. Entitlement to a rating in excess of 30 percent for status post (SP) supraventricular tachycardia (SVT) with atrial pacemaker placement and residual scar since May 21, 2012. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active duty service from January 2003 to June 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which granted service connection for SP SVT with atrial pacemaker placement and residual scar, but the Veteran appealed the initial 10 percent rating assigned. During the Course of the appeal, the case was transferred to the RO in Oakland, California. The Veteran testified before the undersigned Veterans Law Judge at the RO in Oakland, California, in February 2012. A transcript of the hearing has been associated with the claims file. In April 2012 the Board remanded the claim to the RO for additional development. By rating action in November 2012, the initial rating of 10 percent for SP SVT with atrial pacemaker placement and residual scar was increased to 30 percent effective from May 21, 2012. The Veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue has been recharacterized to reflect staged ratings as shown above. FINDINGS OF FACT 1. Prior to May 21, 2012, the Veteran's SP SVT with atrial pacemaker placement and residual scar is most nearly approximated by the criteria indicating intermittent complaints of atrial fibrillation, or one to four episodes per year of paroxysmal atrial fibrillation or other SVT documented by echocardiogram (ECG) or Holter monitor, or: workload estimated at 9-10 METS resulting in dyspnea, fatigue, angina, dizziness or syncope. 2. Since May 21, 2012, the Veteran's SP SVT with atrial pacemaker placement and residual scar has been most nearly approximated by the criteria indicating by paroxysmal atrial fibrillation or other SVT with more than four episodes per year documented by echocardiogram (ECG) or Holter monitor, or; workload greater than 5 METS but not greater than 7 METS resulting in dyspnea, fatigue, angina, dizziness or syncope. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for service-connected SP SVT with atrial pacemaker placement and residual scar have not been met prior to May 21, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Codes 7010, 7011 (2012). 2. The criteria for a disability rating in excess of 30 percent for service-connected SP SVT with atrial pacemaker placement and residual scar have not been met since May 21, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Codes 7010, 7011 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Veteran's claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to the duty to assist, service treatment records, as well as clinical reports from VA and non-VA medical providers identified by the Veteran have been obtained. In April 2012 the Board remanded the case to afford the Veteran a more current VA examination, which was performed in March 2012. The Board has reviewed the examination reports and finds the RO substantially complied with the requirements articulated in the Board's remand. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has also been afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c) (2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, at the hearing the VLJ elicited testimony regarding the history of the claimed cardiac disorder and also sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c) (2) nor has identified any prejudice in the conduct of the Board hearing. Thus, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2) and that the Board can adjudicate the appeal based on the current record. Applicable Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all increased rating claims the Board must discuss whether "staged ratings" are warranted. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability there from are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Diseases of the heart are rated under 38 C.F.R. § 4.104. A 10 percent evaluation is assigned for permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by echocardiogram (ECG) or Holter monitor. A 30 percent evaluation is assigned for paroxysmal atrial fibrillation or other supraventricular tachycardia with more than four episodes per year documented by echocardiogram (ECG) or Holter monitor. 38 C.F.R. § 4.104, Diagnostic Code 7010 (2012). A rating in excess of 30 percent may be awarded for sustained ventricular arrhythmia under Diagnostic Code 7011, which allows that a rating of 60 percent may be awarded for more than one episode of congestive heart failure in the past year; or, workload greater than 3 metabolic equivalents (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. A note to 38 C.F.R. § 4.104 explains that 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 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 on 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. Note (2) to 38 C.F.R. § 4.104 (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background The Veteran had a VA-contracted examination in November 2006 in which he reported a 3 year history of SVTs. His symptoms occurred intermittently up to twice a month, with each episode lasting for a few seconds. His daily functions were affected during flare ups due to his inability to concentrate due to light headedness and shortness of breath. He had received a pacemaker in November 2004, which was very effective and which had caused no side effects. He had previously undergone 2 catherization ablations. Examination revealed no heaves, thrills, murmurs, or gallups. His heart rate and rhythm were regular. There was no evidence of any congestive heart failure, cardiomegaly or cor pulmonale. An EKG was normal except for the presence of an atrial pacemaker. He was mentally alert and oriented with no signs of tension. The examiner confirmed a diagnosis of arrhythmia. In a March 2009 VA cardiac examination, the examiner recorded the Veteran's cardiac history in detail, noting severe sudden palpitations with near syncope in March 2004. The Veteran was found to have cardiac rapid regular tachycardia in excess of 200 beats per minute. He underwent catheter ablation which appeared to have damaged his SA node and began having presyncopal attacks. A pacemaker was placed and he continued having episodes of irregular heartbeat and dizziness. He underwent a second ablation but he continues to have episodes of irregular heartbeat and dizziness once or twice weekly lasting for a few seconds. The Veteran does not have syncope. He was not taking medication. His exercise tolerance was limited as his heart rate did not seem to rise fast enough to exercise normally. Physical examination showed heart rate of 54 and grossly normal heart. The diagnosis was well-healed slightly deforming scar from pacemaker placement; cardiac arrhythmia consisting of SVT SP pacemaker placement with iatrogenic destruction of the SA node; and persistent cardiac arrhythmia with lightheadedness spells. The examiner stated that a very rough estimate of his METS would be 5 to 6. In a May 2009 addendum to the examination the examiner noted that the exact nature of the Veteran's MET's evaluation remained unknown. He stated that, "given his age, his history of significant activity and the fact that his pacemaker clinic showed that he can get his heart rate up to about 125 beats per minute, I believe it is fair to say that he is able to exercise 9 or 10 METS without difficulty." The Veteran underwent another VA examination in May 2012. The examiner noted a history of supraventricular arrhythmia diagnosed in May 2003, with an implanted pacemaker in November 2004. The Veteran first noticed episodes of rapid heartbeat with shortness of breath and near syncope in December 2003. At that time he was seen at the Rideout Hospital in Marysville, California where he was diagnosed with SVTs. He underwent ablation in March 2004 but later developed increased dizziness. In 2007 he noted recurrence of symptoms with palpitations associated with mild dizziness approximately weekly precipitated by exertion. In March 2009 a Holter monitor revealed frequent bursts of atrial tachycardia up to 125 beats per minute. The examiner noted that none of the Veteran's heart conditions qualified within the generally accepted medical definition of ischemic heart disease. The Veteran had no myocardial infarction or congestive heart failure. He had arrhythmia noted as atrial flutter. There were no documented episodes of atrial flutter subsequent to ablation in January 2006. He had intermittent SVTs more than 4 times in the last 12 months. He had no heart valve or infectious heart condition. Examination revealed blood pressure of 108/70. His heart beat was 56 with normal heart sounds, and regular rate and rhythm. His peripheral pulse was normal with no edema. The examiner estimated current METs to be 5-7; this limitation of METs level was due just the heart condition (the examiner found no additional physical disorders which would limit ambulation and physical activities). This was consistent with activities such as walking 1 flight of steps; golfing (no cart); mowing lawn (push mower); or heavy yard work (digging). In terms of limitation of employment, the examiner stated that exertion precipitated symptoms of palpitations and dizziness. As a result the Veteran avoids significant exertion and was unable to work at jobs that required exertion. In addition he has trained to operate communication equipment but was unable to work in that field due to his pacemaker which could be affected by RF/microwave. The examiner stated that there was no evidence of heart failure on current examination and no indication in treatment records of congestive heart failure; there was also no evidence of left ventricle dysfunction. Again, the examiner stated current METs level was 5-7. Additional VA records indicate pacemaker testing but do not contain data pertinent to evaluating the cardiac disability on appeal. Analysis Prior to May 21, 2012 Considering the evidence of record, the Board finds that the overall disability picture of the Veteran's SP SVT with atrial pacemaker placement and residual scar did not more closely approximate the criteria for an initial disability rating in excess of 10 percent prior to May 21, 2012. 38 C.F.R. § 4.7. In this respect, although VA and private treatment records prior to May 21, 2012, do show that the Veteran complained of experiencing SVTs and palpitations frequently, there is no evidence to suggest that he experienced severe attacks. Indeed, there is no evidence that the Veteran sought emergency treatment for any complaints and VA and private treatment records subsequent to his initial December 2003 hospital visit. He complained of occasional episodes of rapid heartbeats or of palpitations. His SP SVT with atrial pacemaker placement was well-controlled as shown by periodic ECG and Holter and cardiac stress tests during this period. The November 2006 VA examiner noted that the Veteran's symptoms occurred up to twice a month, for a few seconds each time. The pacemaker that had implanted in November 2004 proved to be very effective. Examination revealed no heaves, thrills, murmurs, or gallups. His heart rate and rhythm were regular and there was no evidence of any congestive heart failure, cardiomegaly or cor pulmonale. The Veteran was mentally alert with no sign of tension. There are no findings during this period regarding the Veteran's actual or estimated METs. The March 2009 VA cardiac examination, showed a heart rate of 54 and grossly normal heart. The examiner roughly estimated that his METS would be 5 to 6. In a May 2009 addendum to the examination the examiner stated that, "he can get his heart rate up to about 125 beats per minute; I believe it is fair to say that he is able to exercise 9 or 10 METS without difficulty." For the reasons set forth above, the Board concludes that the most probative evidence fails to establish that the Veteran's SP SVT with atrial pacemaker placement and residual scar caused frequent severe attacks, or that ECGs or Holter monitor tests documented more than four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia, prior to May 21, 2012, as contemplated by the rating criteria. In light of the foregoing, an initial disability rating in excess of 10 percent under the Diagnostic Codes for the Veteran's SP SVT with atrial pacemaker placement and residual scar is not warranted prior to May 21, 2012. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Since May 21, 2012 Considering the evidence of record, the Board finds that the overall disability picture of the Veteran's SP SVT with atrial pacemaker placement and residual scar, does not more closely approximate the criteria for a disability rating in excess of 30 percent since May 21, 2012. 38 C.F.R. § 4.7. The VA examiner in May 2012 noted that none of the Veteran's heart conditions qualified within the generally accepted medical definition of ischemic heart disease. He had no myocardial infarction, or congestive heart failure. He had no heart valve or infectious heart condition. The record reflects intermittent SVTs more than 4 times in the last 12 months. The Veteran's peripheral pulse was normal, with no edema. The examiner estimated current METs to be 5-7; this limitation of METs level was due just to the heart condition (the examiner found no additional physical disorders which would limit ambulation and physical activities). The examiner found no evidence of heart failure on current examination and no indication in treatment records of congestive heart failure; there was also no evidence of left ventricle dysfunction. Again, the examiner stated current METs level was 5-7. The evidence of record fails to show that the Veteran had chronic congestive heart failure, or; a work-load of 3 METs or less, or; left ventricular dysfunction with an ejection fraction of less than 30 percent at any time since May 21, 2012. In light of the foregoing, a disability rating in excess of 30 percent for the Veteran's SP SVT with atrial pacemaker placement and residual scar is not warranted since May 21, 2012. The Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular rating In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b) (1) and the Court's decision in Thun v. Peake, 22 Vet. App. 111 (2008). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected SP SVT with atrial pacemaker placement and residual scar are inadequate. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability levels and symptomatology. As discussed above, there are higher ratings available under the diagnostic codes, but the Veteran's disability is not productive of such manifestations. As such, it cannot be said that the available schedular evaluations for the disability is inadequate. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected SP SVT with atrial pacemaker placement and residual scar under the provisions of 38 C.F.R. § 3.321(b) (1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, supra. ORDER An initial disability rating in excess of 10 percent for status post (SP) supraventricular tachycardia (SVT) with atrial pacemaker placement and residual scar prior to May 21, 2012, is denied. A rating higher than 30 percent for status post (SP) supraventricular tachycardia (SVT) with atrial pacemaker placement and residual scar from May 21, 2012, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs