Citation Nr: 1326728 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 10-04 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for status post aortic valve replacement X 2, currently evaluated as 60 percent disabling. 2. Entitlement to an increased rating for paroxysmal atrial fibrillation associated with status post aortic valve replacement, currently evaluated as 10 percent disabling. 3. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to January 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2008 and January 2010 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in August 2012 for further development. The Board has reviewed and considered all evidence of record, including on Virtual VA. FINDINGS OF FACT 1. The Veteran does not have chronic congestive heart failure, or a workload of 3 METS or less that results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 2. Scarring from the Veteran's aortic valve replacement surgery is not unstable or painful on examination, has an area of less than 6 square inches, and results in no limitation of function. 3. The Veteran does not have a supraventricular arrhythmia with paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than 4 episodes per year documented by ECG or Holter monitor. 4. The Veteran's service-connected disabilities do not prevent him from securing and following all forms of substantially gainful employment consistent with his education and work experience. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 percent for status post aortic valve replacement X 2 have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7016 (2012). 2. The criteria for a disability rating in excess of 10 percent for paroxysmal atrial fibrillation associated with status post aortic valve replacement have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7010 (2012). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by letters dated in November 2007 and November 2009. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a claimant under the VCAA. VA has assisted the Veteran in obtaining evidence; examined the Veteran for the disabilities at issue in December 2007, November 2009, and August 2012; and afforded the Veteran the opportunity to give testimony before the Board. The examinations are adequate as they provide all information necessary to apply the appropriate rating criteria. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO complied with the Board's August 2012 remand by obtaining records, examining the Veteran, and readjudicating the claims as indicated. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Higher ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. 38 C.F.R. Part 4 contains the rating schedule. In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Aortic valve replacement and atrial fibrillation The Veteran appeals the RO's assignment of 60 and 10 percent ratings for his service-connected status post aortic valve replacement and paroxysmal atrial fibrillation, respectively. They are rated under 38 C.F.R. § 4.104, Diagnostic Codes 7016 and 7010, respectively. Under Diagnostic Code 7016, a rating of 60 percent is assigned with more than one episode of acute congestive heart failure in the past year; or when workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A rating of 100 percent is assigned when there is chronic congestive heart failure; or when workload of less than 3 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7016. One MET (metabolic equivalent) is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). Under Diagnostic Code 7010, a 10 percent rating is warranted for permanent atrial fibrillation (lone atrial fibrillation) or; one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. A 30 percent rating is warranted if there is paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor. On VA examination in December 2007, the Veteran reported that he had been diagnosed with paroxysmal atrial fibrillation about 2 years prior. On examination, his heart had a normal rate and rhythm. A Holter monitor in January 2007 had shown sinus rhythm with no sustained supraventricular tachycardias. An ECG in November 2007 had revealed normal sinus rhythm. A stress test in October 2007 was negative for ischemia. The diagnosis was status post aortic valve replacement, with an ejection fraction of 63 percent, and clinical functional capacity of 9-10 METS. On VA examination in November 2009, the Veteran's heart had a regular sinus rhythm, including by EKG. His left ventrical ejection fraction was 60 percent. His activity level was about 6 METS. A March 2010 private electrocardiogram showed an ejection fraction of 64 %. An April 2010 private electrocardiogram showed atrial fibrillation. May and July 2011 private medical records show that the Veteran's heart was regular. In December 2011, the Veteran denied chest pain, shortness of breath, and fatigue, and he reported palpitations for 5 days. An EKG showed atrial fibrillation and a ventricular rate of 106-142. Later in December 2011, it was noted that he had been cardioverted the week before, and that his heart was regular. In January 2012, the Veteran's private physician wrote a letter stating that the Veteran had required cardioversion in 2009 and 2011. An echocardiogram in January 2011 revealed a normal ejection fraction. In October 2011, a stress nuclear test showed no inducible ischemia. His impression was that the Veteran had persistent and paroxysmal atrial fibrillation. In private evaluations in January and February 2012, the Veteran's heart was regular. On VA examination in August 2012, the Veteran reported that he had had 3 episodes of atrial fibrillation in the past year, requiring emergency room visits twice, and no hospitalizations. He had had congestive heart failure once, but did not have chronic congestive heart failure. He had had 1-4 episodes of atrial fibrillation in the past year. On examination, his heart rhythm was regular. An EKG revealed arrhythmia consisting of sinus bradycardia with ST-T changes. The left ventricular ejection fraction was 60 %. The Veteran's METS level was found to be greater than 3 and less than 5 METS. No evidence shows that the Veteran has chronic congestive heart failure; or that a workload of 3 METS or less results in dyspnea, fatigue, angina, dizziness, or syncope; or that he has left ventricular dysfunction with an ejection fraction of less than 30 percent. Instead, the evidence of record, including the August 2012 VA examination report and each of the METS and ejection fractions reported shows that the Veteran does not have chronic congestive heart failure and that his METS rating is greater than 3 and that his ejection fraction is greater than 30 percent. Accordingly, a higher rating than 60 percent under Diagnostic Code 7016 is not warranted. As for the atrial valve replacement scars, the regulations for evaluating disorders of the skin were changed effective October 23, 2008, but only apply to applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54708-4712 (Sept. 23, 2008). Because the current claim was filed in October 2007, the revised regulations do not apply to it (The Board notes however that the amendments as applied to the instant case do not, in large part, represent any substantive change, and that application of the amended criteria would not warrant a compensable rating for the skin disability at issue). The pertinent criteria in effect prior to October 23, 2008, provided for a compensable (10 percent) rating for scars other than the head, face, or neck that were greater than 6 square inches in size (39 sq. cm.) that were also deep or caused limitation of motion. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2007). A 10 percent rating was also warranted for scars other than the head, face, or neck that were superficial and did not cause limited motion that were greater than 144 square inches (929 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7802 (2007). A 10 percent rating was also warranted for superficial scars that were unstable (Diagnostic Code 7803) or painful on examination (Diagnostic Code 7804). Scarring other than as described above was to be rated on the basis of limitation of function of the affected part. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). On August 2012 VA examination, the Veteran had scarring related to his atrial valve replacement, but it was not painful, unstable, or in an area in excess of 6 square inches. Accordingly, there is no basis for assigning a compensable rating for the scarring under the applicable version of 38 C.F.R. § 4.118. Furthermore, no evidence shows that the Veteran has had more than 4 episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. To the contrary, the VA examiner in 2012 indicated that he had had 1-4 episodes of atrial fibrillation in the past year. Moreover, Holter monitor, ECG, and stress tests in 2007 had been normal; an EKG showed a regular sinus heart rhythm in November 2009; and there was one electrocardiographic showing of atrial fibrillation in April 2010 and another in December 2011. The latter was cardioverted and the Veteran's physician indicated in January 2012 that there had been a cardioversion in 2009 as well. While this physician felt that the Veteran had had persistent and paroxysmal atrial fibrillation, he did not indicate that it was appropriately documented 4 or more times per year and the preponderance of the evidence indicates that it has not been. While the Veteran indicated in February 2013 that he had provided a letter from his physician which indicated that he had had more than 4 episodes of atrial fibrillation in the previous 12 months, no physician letter of record indicates this, or more importantly, that it had been documented by ECG or Holter monitor that often. In light of the above, a schedular rating in excess of 10 percent is not warranted for the Veteran's paroxysmal atrial fibrillation. Extra Schedular Considerations The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected disabilities are so exceptional or unusual as to warrant the assignment of a higher rating on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation 38 C.F.R. § 3.321(b)(1) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). In this case, the Board finds that the rating criteria used to evaluate the Veteran's service-connected disabilities reasonably describe his disability level and symptomatology. The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2012). Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). TDIU Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (2012). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2011). The Veteran's service-connected disabilities, as evaluated under the VA Rating Schedule, are: status post aortic valve replacement X 2, evaluated as 60 percent disabling; paroxysmal atrial fibrillation, evaluated at 10 percent; and tinnitus, evaluated as 10 percent, for a combined rating of 70 percent. Accordingly, the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a) are met. In this case, the Veteran indicated in November 2009 that he has 1 year of college education, plus training as a sonar technician while in the navy. He had been self employed as a closing agent from February 2003 to September 2008, earning up to $5000 per month; he had been working on call as a technical engineer for a defense contractor from January 2002 to present, earning up to $2000 or $3000 a month (it appears he indicated $3000); and that he had been working from October 2008 to present as a crossing guard, earning up to $1185 per month. He had earned $18,000 in the past 12 months. In December 2009, he indicated that in his on-call job, he sometimes cannot perform his work due to skipping too many heartbeats, as his heart has gone into atrial fibrillation after walking through an airport. In his job as a crossing guard, he can sit down for a moment if atrial fibrillation occurs. A January 2012 private medical record indicates that he was then working as a teacher and as a crossing guard and as a police dispatcher. In October 2007, the Veteran indicated that his disabilities were making it impossible for him to work. On VA examination in December 2007, the Veteran indicated that he had retired from the federal government in 2001 and was currently working part time on call. He could not go back to full time with that company because of his paroxysmal tachycardia. On VA examination in November 2009, the Veteran complained of tiredness and fatigue on uphill climbing and staircase climbing, and the examiner indicated that his activities of daily living were not affected by his aortic stenosis status post surgery, or by his paroxysmal atrial fibrillation. On VA examination in August 2012, the examiner indicated that the Veteran's heart condition does not preclude sedentary work. The Veteran replied in February 2013 that sedentary work is not what he is trained to do. Instead, his work as a crossing guard requires him to be on his feet for periods of more than 1 hour. Preliminarily, the Board notes that the income information which has been provided by the Veteran, of earning $18,000 in the past 12 months in 2009, shows substantially gainful employment, or is above the poverty threshold. Moreover, since that time, the Veteran has continued to hold jobs, including as a crossing guard, police dispatcher, and teacher, and the evidence does not show that he has not been engaged in substantially gainful employment. Moreover, the preponderance of the evidence indicates that the Veteran's service-connected disabilities do not combine to preclude him from obtaining or retaining all forms of substantially gainful employment. The Veteran has 1 year of college plus he had training as a sonar technician while in service, and he has had significant work experience in sedentary occupations such as teaching, police dispatch, and as a closing agent, and he has continued to be a crossing guard even though it might require more than sedentary activity. The examiner in 2009 indicated that his heart disabilities did not prevent him from doing activities of daily living, and the examiner in 2012 indicated that sedentary employment is not precluded. The fact that some of the Veteran's employment might not be completely sedentary does not mean that he is entitled to a TDIU. He must show that he is not capable of performing all forms of sedentary employment, and the preponderance of the evidence indicates that he is capable of performing some types of substantially gainful sedentary employment. As evidence of this, the Board notes that he has taught, and he has been a police dispatcher during the course of the claim, and he was a closing agent before he filed his claim, earning up to $5000 per month. These occupations are sedentary in nature. Based on the evidence, the Board finds that the Veteran is not entitled to a TDIU rating, as his service-connected disabilities do not combine to preclude him from all forms of substantially gainful employment. The preponderance of the evidence is against the claims, and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Should the severity of the service-connected disabilities increase in the future to the point where increased ratings might be warranted or substantially gainful employment might be precluded, the Veteran may file new claims. ORDER Entitlement to a rating in excess of 60 percent for status post aortic valve replacement X 2 is not warranted. Entitlement to a rating in excess of 10 percent for paroxysmal atrial fibrillation associated with status post aortic valve replacement is not warranted. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is not warranted. The appeal is denied. ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs