Citation Nr: 1333543 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 07-11 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 30 percent for a heart disability, diagnosed as mitral valve stenosis, for the period prior to July 14, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from June 1975 through June 1999. This matter comes before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied a rating in excess of 30 percent for mitral valve stenosis. In May 2010, the Board remanded the appeal for additional development. While that development was pending, the agency of original jurisdiction (AOJ) issued a January 2012 rating decision, which granted a total schedular evaluation for mitral valve stenosis, effective July 14, 2010. However, as that award did not cover the entire period on appeal, the Veteran's claim has remained pending. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum benefit allowable by law and that a claim remains in controversy where a lesser benefit is granted). FINDING OF FACT For the appeals period prior to July 14, 2010, the Veteran's service-connected mitral valve stenosis most closely approximated chronic congestive heart failure, or an equivalent level of disability for which a workload of 3 Metabolic Equivalents of Task (METs) or less results in dyspnea, fatigue, angina, dizziness, or syncope. CONCLUSION OF LAW For the appeals period prior to July 14, 2010, the criteria for a 100 percent rating for mitral valve stenosis have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Codes 7000, 7015 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist are set forth in the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, the Board is granting the Veteran's appeal in full and, thus, need not further address the provisions of the VCAA. The decision below results in no prejudice to the Veteran. II. Increased Rating The Veteran asserts that his service-connected mitral valve stenosis has been more severe than contemplated by his currently assigned disability ratings. In essence, he contends that it has rendered him totally disabled throughout the entirety of this appeal. The Board concurs and, for the reasons that follow, will grant a 100 percent evaluation for the appeals period prior to July 14, 2010, when the previously assigned total rating took effect. The Veteran's mitral valve stenosis has been evaluated according to VA's Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities for which service connection has been established. In essence, each service-connected disability is rated by comparing its symptoms with the criteria listed in Rating Schedule, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (2012). 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 (2012). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times throughout the appeal. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When rating a service-connected disability, the entire history must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In considering the appropriate rating to assign in a particular case, when the effects of a service-connected disability have not been clinically disassociated from those of a non-service-connected disorder, all relevant signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)). In this case, the Veteran's mitral valve stenosis has been evaluated under DC 7000-7015. Such hyphenation is proper when a rating under one diagnostic code requires the use of an additional code to identify the basis for the assigned evaluation. See 38 C.F.R. § 4.27 (2012). Diagnostic Code 7000, which contemplates valvular heart disease (including rheumatic heart disease), provides for a 30 percent rating when a heart workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned when there is more than one episode of acute congestive heart failure in the past year; when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of 30 percent to 50 percent. Lastly, a 100 percent rating is assigned during active infection with valvular heart damage, and for three months following cessation of therapy for the active infection. Such a total evaluation is thereafter warranted for valvular heart disease (documented by findings on physical examination and either echocardiogram, Doppler echocardiogram, or cardiac catheterization) resulting in: 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 fracture of less than 30 percent. 38 C.F.R. § 3.414, DC 7000. Diagnostic Code 7015, which pertains to atrioventricular block, provides for a 30 percent rating when a heart workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; where there is evidence of cardiac hypertrophy or dilatation shown on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year; when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Finally, a 100 percent rating is assigned for chronic congestive heart failure; or for evidence showing either that a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or that there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 3.414, DC 7015. With respect to the unit of heart workload referenced above, the Board observes that one MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters (mm) per kilogram of body weight per minute. When, as in this case, the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, so contraindicated, an estimation by a clinical 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). Both DCs 7000 and 7015, as well as DCs 7001-7007, 7011, and 7016 through 7020, were amended effective October 6, 2006, while the Veteran's claim was pending. See 71 Fed. Reg. 52,459-60 (Sept. 7, 2006); codified at 38 C.F.R. 4.100. The revised provisions include the following: (a) Whether or not cardiac hypertrophy or dilatation (shown by electrocardiogram, echocardiogram, or X-ray) is present and whether or not there is a need for continuous medication must be ascertained in all cases; (b) Even if the requirement for a 10 percent rating (based on the need for continuous medication) or a 30 percent rating (based on the presence of cardiac hypertrophy or dilatation) is met, MET testing is required in all cases except (1) when there is a medical contraindication; (2) when the left ventricular ejection fraction has been measured and is 50 percent or less; (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; (4) when a 100 percent evaluation can be assigned on another basis; (c) If left ventricular ejection fraction testing is not of record, a rating should be based on alternative criteria unless the examiner states that such testing is needed in a particular case because the available medical information does not sufficiently reflect the severity of the service-connected disability. Id. Although it does not appear that the Veteran has been specifically notified of these revised regulatory provisions, the Board finds that the amendments have the effect of clarifying, rather than fundamentally changing, the underlying criteria for evaluating heart diseases. As such, the Veteran will not be prejudiced by consideration of these amended provisions, particularly given the optimal disposition of his claim. See Bernard v. Brown, 4 Vet. App. 384, 38 C.F.R. § 3.114; VAOPGCPREC 3- 2000 (April 10, 2000). Similarly, the Board finds that consideration of other heart disease codes is unnecessary given that the criteria detailed above are sufficient to assign a 100 percent rating throughout the entirety of the appeal. In any event, the Board observes that those other codes contain rating criteria that are nearly identical to the provisions of DCs 7000 and 7015. See 38 C.F.R. §§ 4.100, 4.104, DCs 7000 - 7006, 7011, 7015 - 7020. As a final point before turning to the specific facts of this case, the Board notes, by way of history, that while the Veteran has been service connected for mitral valve stenosis since July 1, 1999, his 30 percent rating took effect on November 21, 2000. Thereafter, he submitted a July 24, 2006, petition for additional compensation. As such, the rating period on appeal extends from July 24, 2005, one year prior to the date of receipt of the Veteran's increased-rating claim. See 38 C.F.R. § 3.400(o)(2). However, 38 C.F.R. § 4.1 provides that, in evaluating a service-connected disability, the underlying symptoms must be viewed in relation to their whole recorded history. Therefore, the Board will consider pertinent evidence dated prior to July 24, 2005, but only to the extent that it is found to shed additional light on the Veteran's mitral valve stenosis in relation to the rating period on appeal. The record reflects that the Veteran has an extensive history of heart problems, beginning in the military when he suffered a syncopal episode and was first diagnosed with mitral valve stenosis. He subsequently underwent mitral valve repair surgery and cardiac catheterization in 1999 and 2002, respectively. Then, after applying for and receiving VA benefits for mitral valve stenosis, he underwent VA examinations in June 2004 and March 2005, which indicated that his service-connected disability was productive of dyspnea that interfered with his ability to exercise and perform household chores. Significantly, those examinations also indicated that the Veteran was unemployed and that his heart disability "affect[ed] his ability to work by virtue of episodes of palpations and shortness of breath often associated with stress." With respect to the current appeals period, the record is notable for an April 2006 VA cardiac consultation, which indicated that the Veteran's prescription medication regimen was causing heart palpitations. During a stress test the following month, he was noted to have achieved a MET score of 10. However, a contemporaneous echocardiogram revealed that the Veteran's mitral valve stenosis was now moderate to severe in degree. Thereafter, in June 2006, he underwent a series of cardiac evaluations, including an echo stress test, which had to be cut short due to his severe dyspnea, as well a repeat catheterization, which showed that he had a resting gradient of 7.5 mm Hg, consistent with moderate mitral valve stenosis. At that time, the Veteran also submitted to ejection fraction testing, which indicated that he had 55-60 % blood flow from his left ventricle. Although the ventricle itself was found to be of normal size, the Veteran's worsening heart palpitations, dyspnea on exertion, and occasional chest palpitations prompted his treating cardiologist to prescribe a beta blocker and to recommend surgery to "shave off some of the thickness of his mitral valve." Significantly, the cardiologist also confirmed that the Veteran's mitral valve stenosis constituted a "chronic condition." During a subsequent VA heart examination, performed in August 2006, the Veteran reported that he was contemplating another operation (balloon valvuloplasty) to treat his worsening cardiac symptoms, which prevented him from undertaking any exertion in excess of "light yard work." Concurrent clinical testing was negative for any significant abnormalities. Nevertheless, the August 2006 VA examiner noted the Veteran's "long-standing history" of mitral valve stenosis and recommended that he have a "close followup [sic] with his cardiologist as they prepare for potential balloon valvuloplasty." VA records dated one month after the above examination, in September 2006, reveal that the Veteran decided against surgery and opted instead to undergo a different medication regimen, which included Metaprolol. He then continued to receive regular outpatient treatment that included electrocardiograms (EKGs) performed in January 2007, July 2007, September 2007, and May 2008, all of which were abnormal. The record thereafter shows that in June 2008, the Veteran underwent an inpatient cardiology consultation, which yielded diagnostic findings of an enlarged left atrium, a rheumatic mitral valve, sclerosis of the aortic valve, trace mitral and aortic valve regurgitation, and mitral valve stenosis. He subsequently presented for an April 2009 echocardiogram, which confirmed the prior diagnoses of mitral valve regurgitation and mitral valve stenosis. Significantly, the report of the Veteran's July 2010 VA heart examination, which served as the basis for his current 100 percent schedular rating, indicated that he had a history of congestive heart failure that had prevented him from working "for the last 4 years," or roughly the entire appeals period. Moreover, the Veteran's reported symptoms and clinical test results at that time were almost identical to those that had been noted during his previous VA examinations. Indeed, the only major departure was the Veteran's assigned MET score of 3, which was indicative of a significantly reduced heart workload. Tellingly, however, the July 2010 examiner noted that this score was based upon the Veteran's reported history, later emphasizing in a December 2011 addendum that "his actual METs" could not be measured because he was unable to tolerate a stress test due to his mitral valve stenosis. As such, the VA examiner reasoned, it was necessary to "rely on [the Veteran's] METs by history and based on the echocardiogram finding[s] which showed a moderate mitral stenosis." After careful consideration of the VA examiner's July 2010 report, December 2011 addendum opinion, and the other evidence detailed above, the Board finds that the severity of the Veteran's service-connected heart disability has remained relatively constant throughout the entire rating period. Indeed, he has consistently demonstrated moderate to severe mitral valve stenosis, which is productive of dyspnea and periodic heart palpitations, as well as severe functional impairment, as evidenced by his inability to work and perform all but the mildest physical exertion. Accordingly, while mindful that the Veteran was found to have a MET score of 10 during his May 2006 stress test, the Board considers that finding to be an outlier, which does not represent the actual severity of his disability during this appeal. Moreover, the Board finds the Veteran's estimated MET score of 3 to be a more accurate historical approximation of his overall level of disability. Indeed, that estimate, by the July 2010 VA examiner's own admission, was predicated on the Veteran's relevant clinical history and, as such, was intended to cover the appeals period prior to the examination, and not merely from that point forward. In addition, the Board considers it significant that the VA cardiologist who treated the Veteran early in the appeals period confirmed that his mitral valve stenosis was chronic in nature, and that he was later noted to have a history of congestive heart failure, the symptoms of which were not clinically distinguished from his service-connected disability and, thus, must be considered on appeal. See Mittleider, 11 Vet. App. at 182. Applying the above clinical findings to the applicable rating criteria, the Board finds that the Veteran's service-connected disability has most closely approximated the criteria for 100 percent disability rating under DCs 7000 and DC 7015. 38 C.F.R. § 4.104, DCs 7000, 7015 (2012). As discussed previously, both of those codes provide for such a rating when there is a MET score of 3 or less, or a clinical finding of chronic congestive heart failure. Indeed, the AOJ observed as much in its January 2012 rating decision granting a total schedular evaluation based upon the findings of the July 2010 VA examiner. However, while the AOJ limited the Veteran's 100 percent rating to the period dating from the July 2010 examination, the Board finds that, in light of the evidence presented, his total disability award should be retroactively extended to cover the entire period on appeal. In reaching this determination, the Board has considered the assignment of staged ratings in accordance with Hart, 21 Vet. App. at 509-10. However, the Board has determined that the record does not denote a clear point during the appeal when the Veteran's heart symptoms dramatically worsened from a level consistent with a 30 percent rating to a state of total disability. Rather, as discussed previously, the severity of the Veteran's symptoms has remained relatively constant throughout the pendency of his increased-rating claim. It follows that the Board is precluded from exercising its own independent judgment with respect to any interim worsening in the absence of such a determination by any of the clinicians who have treated or examined the Veteran on appeal. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that the Board is prohibited from exercising its own judgment to resolve medical questions). For the foregoing reasons, and after resolving all reasonable doubt in favor of this long-serving Veteran, the Board finds that, throughout the relevant appeals period, his service-connected heart disability has most closely approximated a level of total impairment under both DC 7000 and DC 7015. 38 C.F.R. § 4.104, DC 7015 (2012). As this represents a complete award of the benefits sought on appeal, no further analysis of the claim is needed, on either a schedular or extraschedular basis. ORDER For the appeals period prior to July 14, 2010, a 100 percent rating for mitral valve stenosis is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. ____________________________________________ S.C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs