Citation Nr: 1324683 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 05-02 735 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). 2. Entitlement to an increased disability rating for cardiac arrhythmia, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran had a period of active duty for training from August to December 1977. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision by the Newark, New Jersey Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision the RO denied the Veteran's request to reopen a previously denied claim for service connection for an acquired psychiatric disorder. The RO continued a 10 percent disability rating for cardiac arrhythmia. In July 2008, April 2011, and November 2012, the Board remanded the case for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2012 the Veteran had a hearing at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge. The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. The Veteran did not file a notice of disagreement with a June 1999 rating decision denying service connection for psychiatric disability. No new and material evidence was received within the appeal period, and no additional service department records were received after that rating decision. 2. Evidence regarding service connection for psychiatric disability that has been received since the June 1999 rating decision is redundant of evidence of record in June 1999. 3. The Veteran's cardiac arrhythmia does not result in dyspnea, fatigue, angina, dizziness, or syncope from a workload of 7 METs or less and has not been manifested by a consistently measurable ejection fraction of 50 percent or lower. CONCLUSIONS OF LAW 1. A June 1999 rating decision denying service connection for psychiatric disability is a final decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. Evidence received since the June 1999 rating decision is not new and material to a claim for service connection for psychiatric disability; the June 1999 rating decision is not reopened. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156. 3. The Veteran's cardiac arrhythmia has not met the criteria for a disability rating higher than 10 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.104, Diagnostic Code 7011 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a request to reopen a previously denied claim based on the submission of new and material evidence, notice (1) must notify a claimant of the evidence and information that is necessary to reopen the claim and (2) must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying benefit sought by the claimant. Kent v. Nicholson, 20 Vet. App. 1 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. VA provided the Veteran with VCAA notice in letters issued in August 2003, January 2010, May 2011, and December 2012. The 2010 letter was compliant with Kent. In those letters VA advised the Veteran what information was needed to substantiate claims for service connection and what constitutes new and material evidence to reopen a previously denied claim. VA informed the Veteran what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. VA advised the Veteran how VA establishes disability ratings and effective dates. VA has made reasonable efforts to obtain relevant records identified by the Veteran. The claims file (including information in paper and electronic forms) contains service treatment records, post-service treatment records, reports of VA medical examinations, records from the Social Security Administration and a transcript of the October 2012 Board hearing. Attempts were made to obtain private treatment records identified by the Veteran as potentially relevant. Pursuant to the 2011 and 2012 Remands, he was asked to complete releases so VA could request private medical records. He did not do so, and nothing further can be done. The Veteran has had a VA medical examination in 2013 that was adequate for evaluating his cardiac arrhythmia. The examiner reviewed the Veteran's medical history and commented specifically on the absence or presence of certain symptoms identified in VA's criteria for rating this disability. In the 2012 Board hearing the Veteran was assisted by an accredited representative from Disabled American Veterans. The undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The RO addressed the Board's remand instructions by requesting and obtaining additional medical records and providing a new VA medical examination. The Board is satisfied that there has been substantial compliance with the remand directives. Therefore no additional remand is needed and the Board may proceed with review of the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit Board consideration of the issues on appeal. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Psychiatric Disability The Veteran contends that he has psychiatric disability that began during his active service. He has repeatedly sought service connection for psychiatric disability. In an August 1985 rating decision the RO denied service connection for psychiatric disability. A rating decision becomes final when a claimant does not file a notice of disagreement (NOD) within one year after a decision is issued. 38 U.S.C.A. § 7105. A rating decision also becomes final if a claimant files a timely NOD, but does not file a timely substantive appeal. 38 U.S.C.A. § 7105. A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7104(b). The Court has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received VA will reconsider the claim. 38 C.F.R. § 3.156(c). The Veteran did not file an NOD with the August 1985 rating decision denying service connection for psychiatric disability, and that decision became final. Also, no new and material evidence was received within the appeal period, and no additional service department records were received after that rating decision. In July 1989 the Veteran submitted a claim for service connection for a disability. He indicated that he was hospitalized. He had VA inpatient treatment in July and August 1989 for psychiatric problems. In an October 1989 rating decision the RO again denied service connection for psychiatric disability. In August 1990 the Veteran wrote that he wanted to reopen his claim for service connection for a nervous condition. The RO received that statement less than a year after the October 1989 rating decision. There is a question as to whether the August 1990 statement constituted an NOD. A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with a rating decision and a desire to contest the result will constitute an NOD. 38 C.F.R. § 20.201 (2012). While special wording is not required, the NOD must be in terms which can be reasonably construed as disagreement with the rating decision and a desire for appellate review. Id. In the August 1990 statement the Veteran asked to reopen a service-connection claim. His words cannot be reasonably construed as expressing dissatisfaction or disagreement with a rating decision and a desire to contest the October 1989 rating decision and a desire for appellate review of that decision. The Board concludes, then, that the August 1990 statement was not an NOD. As the Veteran did not file an NOD with the October 1989 rating decision, that decision became final. Also, no new and material evidence was received within the appeal period, and no additional service department records were received after that rating decision. Statements the Veteran submitted in July 1991 and September 1994 indicated his desire for service connection for psychiatric disability. In a January 1995 rating decision the RO found that new and material evidence had not been received and denied reopening of a previously denied claim for service connection for psychiatric disability. The Veteran did not file an NOD with that decision and it became final. No new and material evidence was received within the appeal period, and no additional service department records were received after that rating decision. In June 1998 the Veteran requested service connection for psychiatric disability. In a June 1999 rating decision the RO denied service connection for PTSD. The Veteran did not file an NOD with that decision and it became final. No new and material evidence was received within the appeal period, and no additional service department records were received after that rating decision. In May 2003 the Veteran sought service connection for psychiatric disability. In a January 2004 rating decision the RO denied reopening of a previously denied claim for service connection for psychiatric disability. The Veteran appealed that decision. In order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the last time that the claim was finally disallowed on any basis (not only since the last time that the claim was disallowed on the merits). Evans v. Brown, 9 Vet. App. 273 (1996). The most recent final disallowance on any basis of the Veteran's claim for service connection for psychiatric disability is the June 1999 rating decision. The Board will consider whether new and material evidence has been submitted since that decision. The regulation defining new and material evidence, 38 C.F.R. § 3.156, was revised in 2001. The revised regulation applies to any claim to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 et seq. (2001). The revised regulation applies to the Veteran's May 2003 claim for service connection for psychiatric disability. Under the revised version of 38 C.F.R. § 3.156, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection also may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including psychoses, may be established based upon a legal presumption by showing that it manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury, or for aggravation of a non-service-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2012). PTSD is a mental disorder that develops as a result of traumatic experience. It is possible for service connection to be established for PTSD that becomes manifest after separation from service. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). The evidence that was of record in June 1999 includes service treatment records, post-service treatment and examination records, and statements from the Veteran and a family member. The Veteran completed a medical history and underwent a medical examination in June 1977, before he entered his period of active duty for training. He did not report any history of mental, emotional, or psychological problems. The examiner checked normal for the Veteran's psychiatric condition. During service the Veteran reported chest pain and irregular heartbeat. He underwent cardiac evaluations. On examination in October 1977 the examiner found that the Veteran had cardiac arrhythmia of unknown origin. The examiner checked normal for the Veteran's psychiatric condition. In 1978 the Veteran filed a claim for service connection for heart murmur and the RO granted service connection for cardiac arrhythmia with murmur. In October 1978 the Veteran was admitted to a VA hospital for a workup of his chest pain and any heart disorder. In June 1979 the Veteran underwent medical evaluation at an Army facility. The examiner concluded that the Veteran was unfit for active military duty because frequent premature ventricular contractions produced discomfort or fear of discomfort to a degree that interfered with satisfactory performance of duty. From February to April 1985 the Veteran had inpatient VA mental health treatment. He was admitted because of agitation, disorganization, and homicidal feelings. The Veteran indicated that he had a heart condition that limited his ability to work. He stated that family members had been pressuring him to get a job, and that he attacked his brother and started to choke him. A treating clinician stated that the Veteran was initially thought to have a judgment disorder, but was then seen to be clearly psychotic and paranoid, with flight of ideas and bright affect. Psychiatric medications were tried and adjusted. The clinician's diagnosis was bipolar disorder, manic. On discharge ongoing medication and outpatient mental health treatment were prescribed. In February and March 1985 the Veteran requested service connection for psychological illness. He asserted that he had a nervous condition that was related to his service-connected heart disorder. In August 1985 the Veteran was admitted for VA mental health treatment. He reported that he feared losing control and hurting others. Clinicians observed some tangential and paranoid thinking and limitation of insight. Clinicians adjusted medications. The discharge diagnosis was schizophrenia, schizo-affective type, depressed. In July and August 1989 the Veteran had VA inpatient mental health treatment. He reported depression and being unable to function at home. He related a history of noncompliance with prescribed psychiatric medications and indicated that he used cocaine. The discharge diagnoses were continuous cocaine abuse and schizophrenia by history. A summary of VA inpatient mental health treatment in August and September 1990 reflects history of psychiatric admissions and cocaine abuse. The discharge diagnoses were bipolar disorder and cocaine dependence. There are reports of multiple periods of VA inpatient mental health treatment in 1991. In June and July 1991 the discharge diagnoses were polysubstance abuse and rule out major depression with psychosis. In an August 1991 period and a September 1991 period the diagnoses were organic hallucinations and mixed substance abuse (cocaine and alcohol). VA treatment records reflect that the Veteran also had inpatient mental health treatment in June 1992, November 1992, July and August 1994, and April 1998. In an August 1998 statement the Veteran's wife wrote that since 1981 she had observed the Veteran to have mental disorder symptoms. On VA mental health examination in February 1999 the Veteran reported that during service in 1977 he felt nervous and experienced chest pain. He stated that drill sergeants denied his requests for medical attention and punished and mistreated him, believing that he was faking his symptoms. He indicated that he became angry and resisted authority. He stated that he experienced anxiety, irritability, sleep impairment, hyperactivity, and depression. He denied experiencing events that threatened the life of or threatened overwhelming physical trauma to himself or others. He indicated that mental disorder symptoms continued after service. The examiner observed increased psychomotor activity, sometimes rapid speech, mood changes, impaired concentration, compromised judgment, and lack of insight. The examiner provided a diagnosis of bipolar disorder. The examiner expressed the opinion that the Veteran's condition did not meet the criteria for a diagnosis of PTSD. The evidence that had been added to the claims file since June 1999 includes more recent treatment records, records from the United States Social Security Administration (SSA), and a transcript of the 2012 Board hearing. In 1995 SSA found that the Veteran had been disabled since 1994, with a primary diagnosis of schizoaffective disorder and a secondary diagnosis of substance abuse. The Veteran had VA inpatient mental health treatment in April and May 2003. The discharge diagnoses were polysubstance dependence and schizoaffective disorder. The claims file contains records of additional VA mental health treatment later in 2003 and in 2004 through 2013. In the October 2012 hearing the Veteran reported that he did not have mental, emotional, or psychological problems before he entered service. He stated that during service drill sergeants ignored his reports of physical symptoms including pain. He related that his attitude then changed, and he lost control of his behavior and became unable to focus. He indicated that these problems continued after separation from service and through the present. Before the June 1999 denial, the record contained no competent evidence that the Veteran had a psychiatric disorder during his period of active service in 1977. Rather, the evidence showed the Veteran had mental health treatment beginning several years after that service. The evidence added after June 1999 includes more recent evidence showing ongoing psychiatric disorders and treatment. Before June 1999 evidence established that the Veteran had post-service psychiatric disorders, so that evidence does not help to establish any fact that was not established before. This new evidence also does not indicate that it is possible any psychiatric disorder began during service. Before the June 1999 denial, the record contained no competent evidence that the post-service psychiatric disorders were possibly related to his period of active service in 1977. Although the evidence added after June 1999 includes more recent psychiatric treatment, there remains a lack of any evidence suggesting a relationship to service. [Although the Veteran testified a private physician had told him his condition was related to service, that physician is deceased, and the Veteran did not complete a release authorizing VA to try to get the records. ] At the time of the June 1999 denial, the record contained the Veteran's allegations that he experienced emotional and psychological symptoms during service, although not formally diagnosed with a psychiatric disability. In the 2012 hearing the Veteran again stated that he had mental and emotional problems during active service. His testimony in 2012 presented the same information that he presented previously in the VA mental health examination in February 1999. The 2012 account is redundant of evidence that was of record in June 1999. Therefore it does not help to establish any unestablished fact that is necessary to substantiate the claim. As for the PTSD aspect of the claim, before the June 1999 denial, the record contained no persuasive evidence of a PTSD diagnosis. The evidence added after June 1999 includes more recent evidence showing ongoing psychiatric disorders and treatment, but still no diagnosis of PTSD. As the potentially relevant added evidence is either redundant of evidence of record before June 1999, or not material to the reasons the claim was previously denied, the added evidence does not constitute new and material evidence. As evidence that is new and material has not been received, the Board denies reopening of the previously denied claim for service connection for psychiatric disability, including PTSD. Cardiac Arrhythmia The Veteran contends that a disability rating higher than the existing 10 percent rating is warranted for his service-connected cardiac arrhythmia. In May 2003 he submitted a claim for an increased rating. In a January 2004 rating decision the RO continued the 10 percent rating. The Veteran appealed that decision. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, 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. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board will consider the evidence for the entire period from the year preceding the Veteran's May 2003 claim for an increased rating and will consider whether higher ratings are warranted for any periods. The RO evaluates the Veteran's cardiac arrhythmia under 38 C.F.R. § 4.104, Diagnostic Code 7011, which provides criteria for rating ventricular arrhythmias as follows: For indefinite period from date of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator (AICD) in place ................................................. 100 percent Chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent ................................... 100 percent More than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 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 ........................... 60 percent Workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray ...... 30 percent Workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required ...... 10 percent The Veteran experienced chest pain and perceived heartbeat irregularities during his service in 1977 and he had medical evaluations and treatment. In a 1978 rating decision the RO established service connection, effective from the Veteran's separation from service, for cardiac arrhythmia. In his May 2003 claim for an increased rating the Veteran asserted that his symptoms had increased. In April 2003 the Veteran sought VA treatment for a two day history of episodes of chest pain. He stated that symptoms worsened after cocaine use. The medical history he reported included history of heart murmur. An emergency room clinician recommended treatment for unstable angina and cocaine-induced ischemia. A treating clinician noted that the Veteran had chest pain with radiation to the left arm and shortness of breath. An electrocardiogram (EKG) showed sinus bradycardia with a ventricular rate at 58 beats per minute. The Veteran had a left cardiac catheterization. He was found to have left ventricular dysfunction with an ejection fraction of 25 percent. The procedure also showed that his coronary arteries were widely patent and free of disease. On VA medical examination in June 2003 the Veteran reported a long history of episodes of chest pain, shortness of breath, and of diagnosis and treatment of heart problems. He indicated that he was on medication for left ventricular dysfunction. It was noted that the Veteran had sinus bradycardia. The examiner observed that the Veteran was not in acute respiratory distress. An EKG showed sinus bradycardia with a rate of 52 beats per minute. The Veteran had a VA cardiology consultation in July 2003. The cardiologist noted that the ejection fraction on cardiac catheterization in April 2003 was reported to be 25 percent and that the ejection fraction on echocardiogram (ECHO) in June 2003 was reported to be 60 percent. The cardiologist reviewed the catheterization film and the ECHO tape. He concluded that the ejection fraction on the cardiac catheterization was at best 30 to 35 percent and that the ejection fraction on the ECHO was about 50 percent. He noted that an ECHO in June 1998 showed an ejection fraction of 55 to 60 percent. The cardiologist provided the impression that the Veteran initially had a decent ejection fraction, that it decreased acutely in early 2003 to the low 30s, and that later it increased to the high 40s to 50, most likely with rehabilitation and staying off of cocaine and alcohol. He found that as of July 2003 the ejection fraction was close to normal. In VA primary care in August 2004 it was noted that the Veteran had received treatment for cardiomyopathy. In August 2008 the Veteran had a VA emergency room visit due to chest pain after smoking crack cocaine. An EKG showed normal sinus rhythm with a rate of 49. In a September 2008 VA cardiology consultation the cardiologist noted that the Veteran had alcoholic cardiomyopathy with a left ventricular ejection fraction of 25 percent in 2003, and a normal left ventricular fraction of 55 to 60 percent since then. The cardiologist indicated that the Veteran remained asymptomatic from a cardiac standpoint. In the 2012 Board hearing the Veteran reported that in the preceding year his doctor told him than his blood pressure was too high. He stated that he had episodes of chest pain. He indicated that he had congestive heart failure in the past but had not been checked for it recently. The Veteran had a VA heart examination in March 2013. The examiner reported having reviewed the Veteran's claims file. The examiner noted that the Veteran has ventricular arrhythmia that was diagnosed in 1977. The examiner indicated that continuous medication was not required for control of the Veteran's heart condition. The examiner found that the Veteran has not had congestive heart failure. The examiner indicated that the Veteran's arrhythmia is intermittent and paroxysmal, and that the Veteran had experienced no episodes of the arrhythmia in the preceding year. On examination the Veteran's heart rate was 68. The rhythm was regular. The examiner noted that a February 2013 EKG had normal results and that a March 2013 echocardiogram showed a left ventricular ejection fraction of 60 to 65 percent. On exercise stress testing the Veteran performed a workload of 14.2 METs. The examiner stated that the Veteran's heart condition did not affect his ability to work. Medical examination and treatment records that address the Veteran's heart do not show that a workload of 7 METs or less has ever resulted in dyspnea, fatigue, angina, dizziness, or syncope. There has not been evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. The Veteran has been found to have left ventricular dysfunction. His ejection fraction was measured at 25 percent on one occasion, but was substantially higher on other measurements. Cardiologists have analyzed a number of test results and have concluded that the Veteran's ejection fraction has been predominantly over 50 percent. The medical evidence thus indicates that the manifestations of the Veteran's cardiac arrhythmia have not met the criteria for a rating higher than 10 percent. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's cardiac arrhythmia has not required frequent hospitalizations. The Veteran at times has asserted that his heart condition interferes with his ability to work. In recent years, however, clinicians have concluded that the Veteran's heart condition does not interfere with his ability to work. The existing 10 percent rating under Diagnostic Code 7011 addresses lowered ejection fraction and any physical limitations caused by arrhythmia, and provides for higher ratings for greater impairment than is present in this case. Therefore the regular rating criteria are sufficient to the circumstances of this case. It is not necessary to refer the rating of the Veteran's cardiac arrhythmia for consideration of extraschedular ratings. The Board has considered whether the record raises the issue of unemployability, such that unemployability must be considered. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, the Veteran at times has asserted that his heart condition interferes with his ability to work. In recent years, however, clinicians have concluded that his heart condition does not interfere with his ability to work. In this case, then, the record does not raise the issue of unemployability. ORDER Reopening of a previously denied claim for service connection for psychiatric disability is denied. Entitlement to a disability rating higher than 10 percent for cardiac arrhythmia is denied. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs