Citation Nr: 1324977 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-10 357 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for supraventricular tachycardia, status post ablation therapy (previously assessed as pericarditis). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from May 1983 to June 2003. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2005 rating decision in which the RO granted service connection and assigned an initial 10 percent rating for pericarditis, effective July 10. 2003 (the date of the claim for service connection). The Veteran filed a notice of disagreement (NOD) in July 2005. The RO issued a statement of the case (SOC) in February 2007, and the Veteran filed a substantive appeal in March 2007. The RO issued a supplemental SOC (SSOC) in November 2007. Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for the left knee disability, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In August 2010, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), in Washington, DC, for additional development and adjudication. After attempting to accomplish further action as directed by the Board, the AMC continued to deny of the claim (as reflected in a November 2011 SSOC), and returned the matter to the Board. In May 2012, the Board again remanded the claim for additional development and adjudication. The AMC continued to deny the claim (as reflected in a February 2013 SSOC) and returned the matter to the Board. A review of VA's electronic, paperless claims processing system (Virtual VA) does not reveal any additional documents pertinent to the present appeal. As a final preliminary matter, the Board again notes, as noted previously, that, in the Veteran's July 2005 NOD, he indicated that he also disagreed with the initial disability ratings assigned for service-connected bilateral knee arthritis, bilateral shoulder impingement, bilateral tinnitus, bilateral hearing loss, and gastroesophageal reflux disease (GERD). In a September 2005 letter, the RO explained that the NOD with regard to these matters was untimely because the rating decision was issued in November 2003. The RO accepted the NOD as claims for higher ratings with respect to these matters. The Veteran appeared for fee-basis examinations related to these claims in September 2008. However, neither the paper claims file nor the electronic claims file contains a rating decision addressing these claims for higher disability ratings. Hence, these claims are not before the Board, and again are referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The Veteran's allergic myopericarditis resolved during service. 3. Since the July 2003 effective date of the award service connection, the Veteran's stress test workload has been demonstrated at or estimated to be 8 METS or greater with echocardiogram measurements of the lowest left ventricular ejection fraction of 55 percent. 4. Since the July 2003 effective date of the award service connection, the Veteran's isolated ventricular and supraventricular ectopies without runs have been deemed inconsequential and not pathologic, and have been controlled with medication. 5. The applicable schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for supraventricular tachycardia, status post ablation therapy (previously assessed as pericarditis) are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,3.159, 3.321, 4.1, 4.3. 4.7, 4.104, Diagnostic Codes 7002, 7010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations 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. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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 rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (here, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A July 2003 pre-rating letter provided notice to the Veteran for what was then a claim for service connection for tachycarditis. An enclosure to the letter, a copy of which is not in the file, suggested that the Veteran was informed of "what the evidence must show." The letters did not clearly meet the Pelegrini and Dingess/Hartman content of notice requirements or the VCAA's timing of notice requirement. After the award of service connection and the filing of the Veteran's disagreement with the initial ratings assigned, the RO provided a notice in September 2006 that met the requirements. However, as noted by the Board in an August 2010 remand, a February 2007 statement of the case set forth incorrect rating criteria. In September 2010, the AMC provided a notice with the correct rating criteria followed by an opportunity for the Veteran to respond and readjudication in a November 2011 SSOC. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of service, VA and private treatment records, and the reports of August 2003, December 2006, and August 2012 VA or VA contract examinations with an April 2013 addendum. The Board concludes that the examinations are adequate because they included a review of the history, a physical examination, a review of relevant clinical testing, and appropriate diagnoses with findings applicable to the rating criteria. The Board finds that no additional RO action to further develop the record in connection with this claim, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim decided herein, the avenues through which he might obtain relevant evidence, and the Veteran's and VA's respective responsibilities obtaining relevant evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with this claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of any of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran served as a U.S. Marine Corps radio operator and communications supervisor and retired at the rank of Staff Sergeant. He contends that his supraventricular tachycardia, status post ablation therapy (previously rated as pericarditis) is more severe than is contemplated by the initial rating. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings 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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and 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). However, where, as here, the question for consideration is entitlement to a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson, 12 Vet. App. at 126. Pericarditis warrants a 10 percent rating if a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; if continuous medication is required. A 30 percent rating is warranted if a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilation on electro-cardiogram, echocardiogram, or X-ray. Higher schedular ratings are available for lower metabolic equivalents or for left ventricular dysfunction with an ejection fraction of 50 percent or less. 38 C.F.R. § 4.104, Diagnostic Code 7002. Supraventricular arrhythmias (which the post-service record reflects, as discussed below) warrant a 10 percent rating if there is permanent atrial fibrillation (lone atrial fibrillation), or; one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by electrocardiogram (ECG or EKG) or Holter monitor. A maximum, 30 percent rating is warranted for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor. 38 C.F.R. § 4.104, Diagnostic Code 7010. Considering the pertinent evidence in light of the above, the Board finds that rating greater than 10 percent for the Veteran's supraventricular tachycardia, status post ablation therapy (previously rated as pericarditis) is not warranted at any time since the July 2003 effective date of the award of service connection. In February 1997, during service, the Veteran experienced an allergic reaction to a medication for prostatitis. The Veteran experienced heart palpitations and an irregular heartbeat. A cardiac catheterization showed no abnormalities. After a period of observation with no strenuous activity, the attending physician diagnosed allergic myocarditis, which resolved when the medication was terminated, and benign self-limited ventricular ectopy secondary to the myocarditis. The Veteran was found fit for full duty and deployed to an overseas location. During the deployment, the Veteran experienced recurrent palpitations and chest pain. In August 2001, he returned to his home station and underwent two ablation procedures that were ultimately unsuccessful. The attending physician prescribed medication. After further workup that included two treadmill tests, echocardiograms, and Holter monitoring, the physician noted that the Veteran was asymptomatic. In November 2001, the Veteran was fit for full duty and returned to deployment while continuing the medication. The RO received the Veteran's claim for service connection for tachycardia, pericarditis, and various heart conditions in July 2003. In August 2003, the Veteran underwent a VA contract examination. In addition to tachycardia, the Veteran reported constant angina, shortness of breath, fatigue, and chest pain that limited his physical activity. There was no history of myocardial infarction or congestive heart failure. An echocardiogram was normal with a left ventricular ejection fraction of 59 percent. The Veteran achieved 8 METS on a treadmill stress test. The physician noted that the pericarditis resolved and that the symptoms imposed only minimal activity restriction. In September 2003, shortly after his military retirement, the Veteran was evaluated by a cardiologist at a military clinic. An Army cardiologist noted the Veteran's reports of recurrent episodes of tachycardia that did not limit his daily activities. An electrocardiogram was normal with indications consistent with the use of the medication. The cardiologist diagnosed a history of myocarditis that resolved and a history of arrhythmia not further defined. The cardiologist continued to prescribe the medication. In February 2004, the RO denied service connection for pericarditis because the disorder had resolved and because the Veteran did not have a chronic residual disability. The Veteran expressed timely disagreement, noting that the August 2003 echocardiogram was normal only because he was taking his medication. He submitted correspondence dated in February 2004 from the Army cardiologist who noted that he continued to follow the Veteran's case for ventricular tachycardia and that he treated the disorder with medication to suppress ventricular ectopy. He further noted that left ventricular systolic function was preserved. In July 2005, the RO granted service connection for pericarditis (claimed as tachycardia and a heart condition) and assigned a 10 percent rating under Diagnostic Code 7002, effective the July 2003 date of claim. The award was based, in part ,on the results of the August 2003 stress test workload of 8 METS with an ejection fraction of 59 percent. The Veteran expressed timely disagreement with the assigned rating in July 2005. In December 2006, a VA contract physician noted the Veteran's report of continued angina, shortness of breath, and fatigue on a constant basis and continued use of medication to suppress ventricular ectopy with no functional impairment as result of his heart condition. Examination of the heart revealed a regular sinus rhythm with no heaves, thrills, murmurs, gallops, or any evidence of congestive heart failure, cardiomegaly or cor pulmonale. A chest X-ray result was within normal limits, and the EKG test result was within normal limits. An echocardiogram showed only mild regurgitation and a ventricular ejection fraction of 59 percent. The physician revised the diagnosis to supraventricular tachycardia (SVT), status post ablation therapy, now in sinus rhythm, based on subjective fatigue and objective medication use. The physician noted that another stress test was contraindicated because of "poor sensitivity for the claimed condition." The physician estimated METS as 10 with no significant limitation or restriction. In February 2007, an offer for employment of the Veteran at an Army aircraft repair depot was withdrawn because of the results of a medical evaluation. The evaluating physician noted that the Veteran had several problems, one of which required treatment in another city that was often debilitating. There was no clinical examination report or comment to identify the problem or the nature of the debilitating treatment. The physician also noted that hearing loss precluded assignment to the position because of noise exposure. In August 2010, the Board remanded the claim for higher rating for further development. The Board directed an additional VA examination in view of the change in diagnosis, the evidence of "debilitating treatment," and to provide the Veteran with the correct rating criteria and another opportunity to submit relevant evidence. In September 2010, the AMC provided notice with the correct rating criteria and scheduled an examination at the VA facility closest to the Veteran's residence. The facility reported that it did not have adequate staff and facilities to perform the examination, and the Veteran declined to travel to another distant VA facility for the examination. The AMC continued to deny a higher initial rating in a November 2011 SSOC based on the evidence of record. In May 2012, the Board again remanded the claim for scheduling of another contract examination at a location closer to the Veteran's residence. In August 2012, a VA physician noted a review of the claims file and accurately summarized the history of diagnosis and treatment during and after service. The physician noted a current diagnosis of SVT and that the earlier myopericarditis had resolved. There was no history of myocardial infarction or congestive heart failure. The Veteran reported intermittent SVT episodes but none in the past twelve months. He reported that he had undergone a stress test one and one-half years earlier that was normal and a third ablation procedure at a private medical facility in February 2012. The operation report for the ablation is of record. Although the attending private physician noted the general history of SVT, there is no mention of a recent increase in episodes or debilitating symptoms. The Veteran reported that a February 2012 electrocardiogram was normal, and the physician also noted that an echocardiogram obtained in February 2012 showed a left ventricular ejection fraction of 55 percent. The VA physician did not perform METS testing because the Veteran denied experiencing symptoms at any level of physical activity. In April 2013, a Holter test was performed by the private facility. The results showed one ventricular and 64 supraventricular ectopies that were less than 1 percent of the total beat count. All were isolated except for one couplet. There were no runs. In an addendum to the August 2012 VA examination, a VA physician evaluated the Holter report and noted that the ectopies were inconsequential and not pathologic. Heart rate was greater than 120 beats per minute 18 percent of the time representing SVT. The above-cited evidence does not support the assignment of more than the 10 percent rating assigned. The medical evidence of record shows that the Veteran's allergic myopericarditis resolved in service after the pertinent medication was stopped. The Veteran is competent to report his recurrent symptoms of arrhythmia, fatigue, shortness of breath, and chest pain. However, multiple tests have shown no evidence of heart damage or valve dysfunction, and the Veteran achieved 8 METS or greater on at least two stress tests and one interview assessment. Further, during the most recent VA examination, the Veteran reported that he did not experience symptoms during physical activities. Therefore, a higher rating under Diagnostic Code 7002 for myocarditis or other functional heart abnormalities based on METS is not warranted. Regarding SVT and the application of Diagnostic Code 7010, there is substantial credible lay and medical evidence that the Veteran experiences SVT, that he uses continuous medication to control the symptoms, and that the medication is effective. The Board acknowledges that the Veteran underwent a third ablation procedure in 2012 but the record does not show that the procedure was necessarily in response to more severe or frequent symptoms. A rating higher than 10 percent is not warranted because the electrocardiogram and Holter test results have not revealed paroxysmal atrial fibrillation or other supraventricular tachycardia more than four episodes per year. In the report of the most recent Holter test, the VA physician noted that the recorded ectopies were inconsequential and not pathologic. In short, notwithstanding the Veteran's reports of fatigue, shortness of breath, and chest discomfort, all the examiners noted that the SVT had minimal or no impact on daily activities, and the Veteran has denied experiencing symptoms at any level of physical activity. The Board has considered the records from the Army aircraft depot indicating that the Veteran that declined an employment position because of unspecified medical problems requiring debilitating treatment. However, this evidence is not accorded any probative weight in the evaluation of the Veteran's disability, as it does not identify the disabilities nor does any evidence of record relevant to SVT show that the Veteran's oral medication to control the disorder is debilitating treatment. Also, as indicated above, the Veteran's complaints-which he is competent to report-have been considered. However, he simply does not have the appropriate training or expertise to render the clinical findings and testing results needed for evaluation of his disability. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Thus, although considered, the Veteran's assertions are not considered more persuasive than clinical findings and testing results of record-which, as indicated above, do not support a higher rating for the disability under consideration at any point pertinent to this appeal. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that at no point pertinent to this appeal has the Veteran's disability been shown to be so exceptional or unusual to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (cited in the February 2007 SOC). There is a three-step analysis for determining whether an extra-schedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant'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. at 115-16; 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. at 116.] In this case, the Board finds that schedular criteria are adequate to rate the disability under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the reports of recurrent arrhythmia, and provides for ratings higher than that assigned based on more significant functional impairment, should the disability worsen. Rating criteria is also available for cardiac dysfunction such as reduced stress workload performance or reduced left ventricular ejection fraction. Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the disability. As the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b) (1) is not met, referral for consideration of an extra-schedular rating is not required. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's supraventricular tachycardia, pursuant to Fenderson, and that the claim for a higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating at any point pertinent to this appeal, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial rating in excess of 10 percent for supraventricular tachycardia, status post ablation therapy (previously assessed as pericarditis) is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs