Citation Nr: 1317467 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 12-24 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to a disability rating in excess of 10 percent for rheumatic fever, inactive with harsh blowing mitral systolic murmur (now claimed as valvular heart disease and rheumatic fever). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran had active service with the Navy from June 1945 until August 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2012 rating decision, mailed in March 2012, by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In pertinent part, the RO denied an increased rating for valvular heart disease. The Board notes that in the February 2012 rating decision the RO also adjudicated claims for service connection for high blood pressure and colon cancer, with both as secondary to rheumatic fever. The Veteran's April 2012, handwritten notice of disagreement (NOD) only referenced his increased rating claim. However, the April 2012 NOD filed by the Veteran's representative indicated that the disagreement was in regards to "all issues dated 2-29-12". Following the receipt of the contradictory NODs, the RO mailed the Veteran a letter in April 2012 and informed him that it had received his NOD with regard to his increased rating claim for valvular heart disease. The RO also requested that the Veteran clarify "[i]f this is not all the issues or if these are not the correct issues, please contact us as soon as possible." Neither the Veteran nor his representative contacted the RO to claim that any other issues are also on appeal. As such, those service connection claims are not before the Board. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the Virtual VA claims file reveals that additional VA medical records have been associated with the claims file. However, those records were considered by the RO in the February 2013 supplemental statement of the case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's inactive rheumatic fever, with harsh blowing mitral systolic murmur, is still inactive and not manifested by valvular heart disease, including rheumatic heart disease. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for rheumatic fever, inactive with harsh blowing mitral systolic murmur, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.88b, 4.104, Diagnostic Code 7000 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With regard to the claim for an increased rating, VA has met the duty to notify and assist the claimant in substantiating this claim for VA benefits, as provided by the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record that is necessary to substantiate the claim. Proper notice will inform the Veteran of what evidence VA will seek to provide, and of what evidence the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1) (2011). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information regarding the disability rating and effective date for the award of benefits if service connection is awarded. Id. at 486. The U.S. Court of Appeals for the Federal Circuit previously held that any errors in notice required under the VCAA should be presumed to be prejudicial to the claimant unless VA shows that the error did not affect the essential fairness of the adjudication. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Under Sanders, VA bore the burden of proving that such an error did not cause harm. Id. In the case Shinseki v. Sanders, 129 S.Ct. 1696 (2009), however, the U.S. Supreme Court held that the Federal Circuit's blanket presumption of prejudicial error in all cases imposed an unreasonable evidentiary burden upon VA. Rather, in Shinseki v. Sanders, the Supreme Court suggested that determinations concerning prejudicial error and harmless error should be made on a case-by-case basis. Id. As such, in conformance with the precedents set forth above, on appellate review the Board must consider, on a case-by-case basis, whether any potential VCAA notice errors are prejudicial to the claimant. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. Sept. 4, 2009). In this case, a letter satisfying the notice requirements under 38 C.F.R. § 3.159(b)(1) was sent to the Veteran in January 2011, prior to the initial RO decision that is the subject of this appeal. Through the letter VA informed the Veteran that the evidence must support a worsening of his disabilities to substantiate the claim. The letter also informed him of VA's duty for obtaining pertinent evidence under federal control and that it would aid him in obtaining pertinent evidence not under federal control, but that it was his responsibility to obtain such evidence. Moreover, with respect to the Dingess requirements, the January 2011 letter provided notice of what the type of evidence necessary to establish an effective date. Based on the above, the notice deficiencies do not affect the essential fairness of the adjudication. For this reason, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has a duty to assist the Veteran in developing his claim. This duty includes assisting the Veteran in obtaining any outstanding records of identified VA or private medical treatment relevant to his claim, and affording him an examination when appropriate. With regard to records, VA has associated with the claims folder the Veteran's service treatment records and pertinent VA medical records. The Veteran also provided copies of his private medical records and did not request that VA attempt to obtain any such records. The Veteran has not indicated that there exist any records of VA or private VA medical treatment relative to this claim that are not already in the claims file. In addition, the Veteran underwent a VA medical examination in April 2011. The RO also obtained an addendum opinion in January 2012. The VA examination and opinion provided specific medical opinions pertinent to the issue on appeal and findings sufficient to make a decision. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Increased Rating Law Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian life. Generally, the degree of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity to the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In addition, in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement and weakness. 38 C.F.R. §§ 4.44, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Analysis The RO initially granted service connection for rheumatic fever, inactive with harsh blowing mitral systolic murmur transmitted to left axille, with a 10 percent disability rating under Diagnostic Code 7000, in an August 1946 rating decision. The Board notes that rheumatic fever is rated under 38 C.F.R. § 4.88b, Diagnostic Code 6309. The Veteran clearly had rheumatic fever in service, though it resolved prior to his discharge. Under Diagnostic Code 6309, a 100 percent evaluation is warranted when rheumatic fever is an active disease; thereafter, the disease is to be rated for residuals under the appropriate system. None of the medical evidence of record documents that the Veteran has active rheumatic fever. Indeed, the April 2011 VA examiner specifically found him to have inactive rheumatic fever. As such, an increased 100 percent rating is not warranted under Diagnostic Code 6309. However, as noted in Diagnostic Code 6309, the Veteran may also be rated for residuals of the rheumatic fever under the appropriate system. The Veteran specifically contends that he has cardiovascular residuals from his disability. In his January 2011 claim, he requested an increased rating for his "valvular heart". As such, the Board will also consider whether an increased rating is warranted under Diagnostic Code 7000 for valvular heart disease (including rheumatic heart disease) and any other residual of rheumatic fever. Private medical records document numerous complaints of, or treatment for, the heart, but not for any valvular heart disease, including rheumatic heart disease. The private medical providers did not identify any residuals of the past rheumatic fever. VA medical records similarly document complaints of, or treatment for, the heart, but do not indicate that the Veteran has valvular heart disease, including rheumatic heart disease, or any other residual of rheumatic fever. In April 2011, the Veteran underwent a general VA examination, which did not include a review of the claims file. The examiner noted that the Veteran had developed rheumatic fever in service and a heart murmur. The Veteran also had a recent diagnosis of coronary artery disease and had had two stents placed. The Veteran reported that in the last two years he had developed a lack of stamina, shortness of breath with mild to moderate activity and occasional heart palpitation, without associated symptoms. The Veteran also reported that although a heart murmur is present, most people were unable to hear it. The April 2011 VA examiner found that she was unable to hear the heart murmur with the Veteran sitting, lying or on his side and was also unable to hear radiation to the axilla. The examiner noted a stress test showing shortness of breath and lack of stamina. The April 2011 VA examiner diagnosed the Veteran with rheumatic fever, inactive with harsh blowing mitral systolic murmur transmitted to the left axilla. The examiner found no prior impact on employment, but that if he had to work now he would be limited by lack of stamina and shortness of breath. The Veteran had only been symptomatic the last two years. The examiner also had difficulty distinguishing between coronary artery disease and a mitral valve condition, as there were no medical records available for review. In January 2012, the April 2011 VA examiner provided an addendum medical opinion, following claims file review. The examiner found that the service treatment records documented rheumatic fever, with noted murmur and a normal EKG. The rheumatic fever had been treated and had resolved. The examiner further noted that the Veteran had not had hospitalizations or treatment for rheumatic fever for years following service and VA dental records did not document prophylaxis due to valvular disease or rheumatic heart disease. The examiner found that VA medical records did not document rheumatic heart disease and that private medical records also did not document rheumatic heart disease or valvular disease. In January 2012, the VA examiner explained that rheumatic fever could have various heart complications, but that the Veteran did not have those complications. The examiner further noted that rheumatic heart disease would be the most severe sequellae of acute rheumatic fever, but that the Veteran did not have the conditions consistent with a finding of rheumatic heart disease and specifically found that the Veteran had no documented rheumatic heart disease. The VA examiner found that there was no indication of rheumatic heart disease, and that the Veteran's mild mitral regurgitation was likely related to aging or his normal physiologic finding. The examiner further noted that a neurologic disorder could be associated with rheumatic fever, but that her neurologic examination of the Veteran had failed to reveal sensory losses or involvement of the pyramidal tract. Based on information in the claims file, past and present medical records, history and physical, and a review of medical literature, the examiner found the Veteran's high blood pressure, heart disease, bilateral hand tremors, colon cancer and urinary tract infections were less likely as not (less than 50/50 probability) caused by or a result of the Veteran's in-service rheumatic fever. In August 2012, Dr. W.H. Skinner filled out a questionnaire of the Veteran's condition for VA review. Dr. Skinner noted that the Veteran's heart conditions were atherosclerotic cardiovascular disease, coronary artery disease and stable angina. Dr. Skinner also noted a medical history of rheumatic fever with heart murmur from service. Dr. Skinner, however, specifically found that the Veteran did not have a heart valve condition. Following a review of the above described evidence, it is concluded that there is no medical evidence of record showing that the Veteran currently has active rheumatic fever, or any residual disability related to his bout of rheumatic fever in service. The April 2011 VA examiner (who also provided the January 2012 addendum opinion) found that the Veteran did not have rheumatic heart disease and did not find any other residuals of the in-service rheumatic fever. Additionally, Dr. Skinner specifically noted that the Veteran did not have a heart valve condition and when listing the Veteran's heart conditions did not include valvular heart disease or rheumatic heart disease among his current disabilities. As such, none of the medical evidence of record shows that the Veteran has a heart valve disorder or disease, his disability does not warrant even a compensable rating for service-connected his inactive rheumatic fever, with harsh blowing mitral systolic murmur. Even if the Board were to conclude that his stress test results were associated with any residuals of the rheumatic fever experienced in service, the finding of an estimated 7 METS would meet the criteria for a 10 percent rating under DC 7000. Additionally, the medical evidence does not demonstrate evidence of congestive heart failure. The record shows that the Veteran's current cardiac-related symptoms are due to a difference and distinct disease process that is not associated with the residuals of rheumatic fever. The Board notes that although the Veteran does not meet any schedular criteria for a compensable rating for his service-connected rheumatic fever, inactive with harsh blowing mitral systolic murmur, he has received a continuous 10 percent for his disability for over 20 years. As such, that 10 percent disability rating is preserved. 38 C.F.R. § 3.951. Additionally, the rheumatic fever, inactive with harsh blowing mitral systolic murmur, does not warrant referral for extra-schedular consideration. In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id.; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. In the present case, the Board notes that it has considered Mittleider v. West, 11 Vet. App. 181 (1998) and that the April 2012 did not find any residuals of the in-service rheumatic fever. Here, the rating criteria are not inadequate. Higher ratings are available for the service-connected disability when it is more severe; however the Veteran does not meet those criteria. The Board also finds that no exceptional or unusual factors are in evidence. Additionally, the disability does not cause frequent periods of hospitalization, which would warrant an extraschedular evaluation. Also, the VA examiner essentially found that, in regards to work problems, the Veteran's lack of stamina and shortness of breath were due the non-service-connected coronary artery disease, when she established in the January 2012 VA addendum opinion that the Veteran did not have valvular disease . The Board finds that there is no basis for referral for consideration of an extra-schedular rating in this case. As a final point, the Board notes that, although a claim for a total disability rating based on individual unemployability (TDIU) may be considered a component of a claim for higher rating (see e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009)), here, there is no assertion or indication that the Veteran's rheumatic fever, inactive with harsh blowing mitral systolic murmur, renders him unemployable. Indeed, as previously noted, in regards to work problems, the VA examiner essentially found that the Veteran's lack of stamina and shortness of breath were due the non-service-connected coronary artery disease, as she established in the January 2012 VA addendum opinion when she found that the Veteran did not have valvular disease. As such, TDIU is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). The Veteran's claim for a disability rating in excess of 10 percent for his rheumatic fever, inactive with harsh blowing mitral systolic murmur, is denied. ORDER A disability rating in excess of 10 percent for rheumatic fever, inactive with harsh blowing mitral systolic murmur (now claimed as valvular heart disease and rheumatic fever) is denied. ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs