Citation Nr: 1311812 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 03-17 301 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in San Diego, California THE ISSUE Entitlement to an initial rating in excess of 30 percent for hypertensive heart disease. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from September 1989 to July 1988. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in San Diego, California. In a September 2005 decision, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the Court of Appeals for Veteran's Claims. The parties entered into a Joint Motion for Partial Remand, which was adopted by the Court, which vacated the Board's decision as to this issue. The Board remanded the claim for issuance of a supplemental statement of the case or additional development in December 2009 and September 2012. The case has now been returned to the Board. The Veteran testified at hearings before a Decision Review Officer (DRO) at the RO in August 2003 and in February 2009. FINDING OF FACT The Veteran's hypertensive heart disease was not characterized by more than one episode of acute congestive heart failure per year, or a workload of 5 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or left ventricular dysfunction with an ejection fraction of 50 percent or less. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for hypertensive heart disease were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.104, Diagnostic Code 7007 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice 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; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in August 2002 which explained how VA could assist him with obtaining evidence in support of his claim and which also explained the criteria for establishing service connection for a claimed disability. In March 2006 the Veteran was sent a letter that explained how VA assigns ratings and effective dates for service connected disabilities. The Veteran's claim for a higher initial rating for his hypertensive heart disease is a downstream issue from the initial grant of service connection for that disability, although the Veteran actually initially claimed an increased rating for hypertension which led to service connection for hypertensive heart disease. The RO initially reclassified the Veteran's service connected hypertension as hypertensive heart disease and assigned a 30 percent rating for that disability. Subsequently, the RO restored the prior 10 percent rating for hypertension and continued the 30 percent rating for hypertensive heart disease. The Veteran filed a notice of disagreement arguing that he should have received a higher rating for his hypertensive heart disease. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003 In this precedential opinion, the General Counsel held that although VA is required to issue a statement of the case (SOC) if the downstream issue is not resolved, 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. An SOC was issued in June 2003. The Veteran's claim was thereafter readjudicated on multiple occasions, most recently in February 2013. In any event, the Veteran was sent a VCAA letter that provided all of the above information, as well as which informed the Veteran that in order to receive a higher rating for a service connected disability he needed to show that it got worse, in October 2012. This was in accordance with the Board's September 2012 remand. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records both on paper and electronically stored on Virtual VA, private treatment records, written statements by the Veteran, and transcripts of the Veteran's testimony at the two hearings held at the RO. The Veteran was provided with multiple VA examinations in support of his claim, most recently in November 2012. The November 2012 VA examination was in substantial compliance with the instructions that were set forth in the Board's September 2012 remand. For the above reasons, the Board finds that VA has met its obligations under the VCAA in this case. Initial Rating The Veteran contends that the symptoms of his hypertensive heart disease are worse than are contemplated by the currently assigned 30 percent rating. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. 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 rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases, such as this one, in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Hypertensive heart disease is rated pursuant to 38 C.F.R. § 4.104, diagnostic code 7007. A 30 percent rating applies when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. A rating of 60 percent applies when there is more than one episode of acute congestive heart failure per year, or when 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 100 percent rating applies when there is chronic congestive heart failure, or a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Mercy Hospital medical records submitted by the Veteran predate the claim by more than one year and are not relevant to the current severity of his cardiac disability. A July 2001 VA treatment record shows mild left ventricular enlargement and pulmonary vascular engorgement on x-ray, possibly due to systemic hypertension. A September 2002 examination of the Veteran's hypertension revealed some evidence of hypertensive left ventricular hypertrophy on x-ray and electrocardiogram. A January 2003 treatment note indicated that the Veteran was able to walk three miles two weeks ago and he denied any decrease in exercise tolerance. He was more tired and had heavier breathing. He complained of chest pain. Another January 2003 note also indicated complaints of chest pain, but recorded that the Veteran reported he could walk four to five miles over a couple of weeks without difficulty and could walk up 7 to 8 flights of stairs. He did have some increased fatigue. The chest pain was not thought to be related to the Veteran's heart. In April 2003, imaging showed an estimated left ventricular ejection fraction of 60 percent. A May 2003 VA exercise tolerance test showed that the Veteran reached a maximum workload of 12.9 METs. A workload of 10.4 METs was predicted for his age. The Veteran testified at a hearing before a DRO in August 2003. The Veteran testified that he sometimes had pressure like chest pains. His remaining testimony did not address current symptoms of hypertensive heart disease. An October 2003 treatment record indicated that the Veteran was biking for 20 minutes three times a week and swimming twice a week. There was no chest pain, shortness of breath, or abdominal pain associated with this exercise. The Veteran intermittently continued to complain of chest pains, but for the most part these were attributed to causes other than hypertensive heart disease. In December 2006 the Veteran went to a private hospital complaining of chest pain but he was not admitted. The doctor who examined him found no evidence of a serious or life-threatening disease that could be causing his chest pain. He was given instructions which explained that chest pain could be caused by many different things. He reported that he went back to the hospital a few days later and was given a cardiac workup. This was reportedly negative. Also in December 2006 the Veteran was seen at a VA Medical Center for chest pain. This was not thought to be related to his heart as cardiac markers were negative. However, heart problems were within the differential diagnosis. The Veteran testified before a DRO in February 2009. He testified that he felt more tired, had changes in his breathing pattern, and was anxious. The largest impact was fatigue. He worried about his heart. He was bothered by erectile dysfunction, for which he is separately service connected. He stated that he wanted a new heart examination. In March 2009 the Veteran was afforded a heart examination. At that time it was noted that the Veteran had not had any congestive heart failure or myocardial infarctions. He had an abnormal resting electrocardiogram that normalized with stress testing. Chest x-rays showed some cardiomegaly and a tortuous aorta consistent with systemic hypertension. In the past, he had good exercise tolerance although it greatly affected his blood pressure. It was noted that the Veteran's last stress test indicated a workload of 10.2 METs, but it was not stated when the test took place. In June 2009 the Veteran was given another examination of his heart, insofar as the previous examination did not include an ejection fraction. At that time the Veteran reported some dyspnea with exertion and fatigue. He also reported some palpitations without dizziness. He walked, but not briskly. He had some enlargement of the left ventricle and his aorta was tortuous. A nuclear stress test in April 2003 showed an ejection fraction of 60 percent. Estimated METs was 5 to 7. An echocardiogram showed an ejection fraction of 67 percent, which was normal. The Veteran was reexamined in November 2012. The Veteran had not had a myocardial infarction or congestive heart failure. He did not have cardiac arrhythmia. He did not have a heart valve condition. He did not have any pericardial adhesions. He had not had any surgical or non-surgical procedures for the treatment of a heart condition. The Veteran had been hospitalized to rule out cardiac causes of chest pain. Heart rate was 88, rhythm was regular, heart sounds were normal, auscultation of the lungs were clear, and there was no jugular venous distention. Point of maximal impact was the 5th intercostal space. There was evidence of cardiac hypertrophy and cardiac dilation as shown by echocardiogram. An electrocardiogram showed normal sinus rhythm with a non-specific T wave abnormality. Left ventricular ejection fraction was 67.2 percent. Wall motion was normal. There was moderate to severe left ventricular hypertrophy. Exercise stress test showed METs of 8.3. Any limitation on METs was due to the heart condition. There was normal left ventricular diastolic and systolic function. The evidence establishes that the criteria for an evaluation in excess of 30 percent for hypertensive heart disease are not met. The Veteran was not shown to have ever had congestive heart failure, workload when tested was always greater than 5 METs, most recently it was 8.3 METs, and ejection fraction was never 50 percent or lower, it ranged from 60 to approximately 67 percent. The Board has considered The Veteran's lay evidence to include his complaints that the medical evidence is marred and that he had failed the treadmill test. However, we conclude that the repeated findings by trained professionals are more probative of the degree of impairment than his non-specific lay statements. Here we find that there is a presumption of regularity that the examiners performed their duties. Although there is hypertrophy, METs have always been better than eight and the ejection fraction has been better than 50 percent. He has not had acute congestive heart failure and his various complaints were determined to be non-cardiac in origin. The preponderance of the evidence is against the claim and there is no doubt to be resolved. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). The Veteran's symptoms of dyspnea on exertion and fatigue are contemplated by the rating schedule. The Veteran's intermittent chest pains were never definitively linked to his heart problems, often being attributed to other causes, but even if they are considered this symptom is not so significant as to warrant extraschedular evaluation. The Veteran was briefly hospitalized for chest pain on a few occasions, but this was not shown to have been caused by his heart and in any event the hospitalizations were infrequent and short term. The Veteran's heart condition has not been shown to materially affect his employment. ORDER A rating in excess of 30 percent for hypertensive heart disease is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs