Citation Nr: 1309977 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 05-09 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial compensable rating for rheumatic fever with carditis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran had active service from December 1973 to December 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Los Angeles, California, which, in part, granted service-connection for rheumatic fever with carditis and assigned a noncompensable disability rating. The issue was remanded in March 2008 and June 2010 for further development, and now returns before the Board. FINDINGS OF FACT The Veteran does not currently have rheumatic fever or any residual disability due to service connected rheumatic fever. CONCLUSION OF LAW The criteria for a compensable evaluation for service connected rheumatic fever have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.88b, Diagnostic Code 6309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Stegall Considerations As noted above, the Board previously remanded this matter on two occasions. In March 2008, this case was remanded for a further VA examination by a cardiologist to determine the nature and severity of the Veteran's carditis. In June 2010, this claim was again remanded, as the Veteran had been provided with a VA examination, but not before a cardiologist, rather, before a nurse practitioner. In August 2010, the Veteran was seen by a VA cardiologist. The cardiologist noted that the Veteran had previously received cardiac testing in 2008 and 2010 which addressed his history of rheumatic fever. It was not felt that additional workup in the cardiology clinic was necessary. This was discussed with the Veteran who agreed. In September 2010, the Veteran's claims file including service and postservice medical records was reviewed by a VA cardiologist. The cardiologist based on review of the medical records concluded that the Veteran had no evidence of persistent myocardial dysfunction from carditis. The claim was readjudicated in a May 2011 SSOC. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in July 2003, October 2003, October 2004, November 2007, April 2008, November 2009, and June 2010, as well as prior remands, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided VA examinations and opinions during the course of this appeal, in December 2006, December 2008, and September 2010. The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and together provide sufficient information to evaluate the Veteran's claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined in September 2010. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his attorney have not contended otherwise. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. See 38 C.F.R. Part 4 (2012). When 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. See 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2012). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2012); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. See 38 C.F.R. § 4.14 (2012). In general, after the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a) (2012). However, in ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 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 (2012). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The rating criteria for rheumatic fever is under 38 C.F.R. § 4.88b, Diagnostic Code 6309. The rating criteria only warrants a 100 percent evaluation when rheumatic fever is an active disease; thereafter, the disease is to be rated for residuals under the appropriate system. The Veteran specifically contends that he has cardiovascular residuals from this disability. As discussed below, there is no evidence that the Veteran's rheumatic fever is active, and an increased rating is therefore not warranted under DC 6309. The Veteran was initially granted service connection for this disability at a noncompensable level by a June 2004 rating decision. The Veteran was granted a noncompensable rating at that time because he failed to report for an examination, however, service treatment records showed that he was hospitalized in March and April 1975 in service with a diagnosis of rheumatic fever with carditis, and was recommended two months of rest. The Veteran's treatment records subsequent to service show no evidence of treatment for, or a diagnosis of, residuals related to rheumatic fever. The Veteran received a VA examination for rheumatic fever residuals in December 2006. At that time, the Veteran's in service history of rheumatic fever was noted. The Veteran was supposed to have an EKG and cardiology consult for evaluation in conjunction with the examination, and failed to report for those examinations. The Veteran was diagnosed with a history of rheumatic fever with carditis in 1974, and a current heart murmur, but the examiner did not indicate whether the Veteran currently had any residuals related to this rheumatic fever. He did note a chest X-ray showed blunting of the left costophrenic angle, possibly secondary to a small pleural effusion, a slight prominence of the left atrial appendance without evidence of a left atrial enlargement, and a normal heart size, along with a normal pulmonary vasculature with clear lungs. The results of a myocardial perfusion test dated July 2008 were noted. He was noted to have a good cardiovascular workload by PRP criteria. He had modest left ventricular enlargement. There was a suspected attenuation artifact on the inferior wall of the left ventricle. No evidence of stress induced reperfusion changes was noted. His left ventricular ejection fraction was 52%, which was normal, with normal wall motion and systolic wall thickening. The Veteran received a cardiac consult in December 2008. At that time, he underwent an echocardiogram. The summary showed mild left ventricular ejection and normal left ventricle systolic function. He had stage I Left diastolic diastolic dysfunction. He had normal right ventricular size and systolic function. There was no significant valvular dysfunction. He had a mildly dilated ascending aorta. Based on the results of the echocardiogram and myocardial perfusion test, the examiner concluded that there was no indication of coronary artery disease, congestive heart failure, or cardiac problems with past history of rheumatic heart disease, the left ventricle ejection fracture was within normal limits, and there was no valvular disease. There was no need for cardiac medical therapy at that time. An addendum to that report dated February 2010 specifically indicated that there were no findings of cardiac problems detected. The patient did have mild diastolic dysfunction, which the examiner indicated happens over time with a history of hypertension, drug use, and age. Heart function with impairment of the LV function would be an indicator of problems from myocarditis, however, the Veteran's LV function was noted to be normal on most recent testing. The results of echocardiogram testing in August 2010 showed normal left ventricular systolic function, with an ejection fraction estimated at 60-65 percent, concentric mild LVH, normal LV wall motion, stage 1 diastolic dysfunction, normal right ventricular size and function, aortic dilation at the level of the sinuses of the valsalva, and no valvular dysfunction. The Veteran had a further cardiac consultation in September 2010. At that time, the results of his August 2010 echocardiogram were noted. The examiner noted specifically that three months after the Veteran's rheumatic fever episode, he had a normal cardiac examination, and there was no evidence of rheumatic fever or sequelae. His ventricular ejection fraction was normal by echocardiography and nuclear perfusion imaging. He had no significant valvular disease. His degree of diastolic dysfunction was mild and unlikely to contribute to severe symptoms. In any case, the Veteran was not exertionally limited, as noted on a 2008 treadmill test. Based on the above, the examiner concluded that the Veteran had no evidence of persistent myocardial dysfunction from carditis, related to his rheumatic fever. As shown above, there is simply no medical evidence of record showing that the Veteran currently has any residual disability related to his bout of rheumatic fever in service. As such, the Board finds that the criteria for a higher evaluation has not been met and the Veteran has therefore been properly rated as noncompensably disabled for his service connected rheumatic fever residuals throughout the course of the appeal. See Hart, supra. Other Considerations In reaching the above conclusion with respect to the Veteran's increased rating claim, the Board has not overlooked the Veteran's statements with regard to the severity of his rheumatic fever residuals. The Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing pain; and the Board finds that the Veteran's reports have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran's reports along with findings from the medical evidence. The Board notes the pertinent rating criteria contain diagnostic criteria that requires medical expertise (such as measuring range cardiac functioning) to evaluate the Veteran's disabilities. The record does not reflect that the Veteran is competent to make such medical opinions. Accordingly, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports have been accorded greater probative weight. For the claim currently on appeal, the Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where scheduler evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 first 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected rheumatic fever residuals is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture, and this disability has not caused the Veteran to frequently miss work, nor have they required frequent hospitalizations. The Board, therefore, has determined that referral of these claims for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Accordingly, for the reasons stated above, the Board finds that the preponderance of the evidence of record is against the claim of increased rating for the Veteran's residuals of rheumatic fever, and the benefit-of-the-doubt rule is therefore not for application. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert supra. As the preponderance of the evidence of record is against this claim, it must be denied. Rice Consideration In denying the Veteran's claim for increased rating, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In the instant case however, as the Veteran has no evidence of any residuals related to this disability, nor has he alleged unemployability related solely to this disability, the Board concludes that the issue of entitlement to TDIU has not been raised. ORDER Entitlement to an initial compensable rating for rheumatic fever with carditis is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs