Citation Nr: 1333668 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 12-08 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to a disability rating in excess of 10 percent for valvular heart disease, mitral damage, class I. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran had active service from December 1950 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Milwaukee, Wisconsin, that denied the above claim. The Board notes that the Veteran's claim was remanded for additional development in May 2013. The ordered development has been completed and the claim was readjudicated by the Appeals Management Center. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence indicates that the Veteran's valvular heart disease is asymptomatic. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for valvular heart disease are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7000 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in June 2010 that fully addressed all notice elements and was issued prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that the required development from the May 2013 remand has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board notes that the Veteran was afforded a sufficient VA examination, he was requested to submit any relevant privacy releases in a June 2013 letter and additional VA treatment records were obtained and associated with the virtual claims file. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Board additionally notes that the Veteran submitted a form in August 2013 indicating that the Board should proceed with further adjudication and that he has no additional evidence to submit. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Regulations and Analysis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 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 reviewed when making disability ratings. 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already 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). Under the current version of Diagnostic Code 7000, for rating valvular heart disease, a workload of greater than seven METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or with continuous medication required warrant a 10 percent evaluation. The next higher evaluation of 30 percent disabling is available where a workload of greater than five METs but not greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope; or with evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. An evaluation of 60 percent disabling is available where there has been more than one episode of congestive heart failure in the past year; where a workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness or syncope; or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Finally, the maximum evaluation of 100 percent disabling is warranted for chronic congestive heart failure; where a workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7000 (2013). The Veteran claimed for an increased rating for his heart disability in May 2010. He believes he should be afforded a higher disability rating because he had been told that his heart was damaged. The Veteran was afforded a VA examination in July 2010. The Veteran reported that he had an episode of an irregular heart beat the week prior and he had shortness of breath when climbing a hill on his regular walk. He related an episode of chest pain in March 2010. He was admitted to the ER at the VA Medical Center for observation. The attending physician said after conducting diagnostic testing that it was anxiety. The Veteran reported that he is on continuous medication for hypertension and heart disease. The ECG done in July 2010 was normal except for bradycardia at 59 beats per minute. The chest x-ray was interpreted as showing the heart size within normal limits and vascularity was normal. There was no infiltrator effusion. The Veteran had midline sternotomy. There were moderate advanced changes of chronic obstructive pulmonary disease (COPD). The impression was COPD without active disease. Additionally, in the July 2010 VA examination report, the VA examiner concluded that while the Veteran has moderately severe COPD and a history of ischemic heart disease with residual heart damage, these were unrelated to the service-connected valvular heart disease, which had not progressed. A September 2010 VA treatment note indicates that the Veteran's heart disease had been stable on his current diet, medications and exercise with no new complaints. The Veteran was afforded an additional VA heart examination in July 2013. The examiner indicated that the Veteran had the following heart conditions: acute, subacute, or old myocardial infarction (MI), date of diagnosis: June 1996; atherosclerotic cardiovascular disease, date of diagnosis: June 1996; coronary artery disease (CAD), date of diagnosis: June 1996; valvular heart disease, date of diagnosis: 4 March 1955. The Veteran stated he has no specific issues or symptoms with his heart. However, he gets short winded from breathing when he walks but does not note cardiac symptoms. The examiner noted medication for the Veteran's hypertension and coronary artery disease as Metoprolol, Furosemide, amlodipine, isosorbide Mononitrate with no evidence of treatment required for asymptomatic mitral valve disease. The examiner further noted that the Veteran had a mitral valve murmur without significant disease noted on repeated testing. The Veteran had significant objective testing in the context of his July 2013 VA examination. He had an EKG which indicated sinus bradycardia unchanged from prior EKG's; a chest x-ray which indicated mild cardiac enlargement, coronary artery bypass grafting (CABG) and no pneumonia, effusion or edema. Additionally, a March 2010 echocardiogram indicated a left ventricular ejection fraction of 50 percent. A March 2010 coronary artery angiogram indicated open grafts and coronary arteries, evidence of a previous MI with a left ventricle scar and no significant mitral valve disease. The Veteran's METs level was listed as 1-3 METs; this METs level has been found to be consistent with activities such as eating, dressing, taking a shower, slow walking (2 mph) for 1-2 blocks. The examiner went on to opine that 0 percentage of the METs level limitation is due solely to the Veteran's service connected heart condition, indicating that 50 percent of the Veteran's limitation is due to his peripheral vascular disease and the other 50 percent due to his COPD. The rationale for this opinion was that the Veteran did not show evidence on interview or previous studies for cardiac based limitations. The examiner further opined that the Veteran's non-service-connected ischemic heart disease and/or chronic obstructive pulmonary disease is not caused by, the result of, or permanently aggravated by the Veteran's service-connected mitral valve disease. Also, that the Veteran's asymptomatic service-connected mitral valve disease did not show any impact to the Veteran's activity level to include METs. There was no current evidence of cardiac hypertrophy or dilation on electro-cardiogram, echocardiogram, or X-ray due to the service-connected mitral valve disease. The Veteran did have enlargement secondary to hypertensive heart disease and prior MI on current chest X-rays. However, there was no evidence of chronic congestive heart failure to include within the last 12 months including due to the service-connected mitral valve disease. The examiner noted review of the claims file, objective testing and an in-person examination. The rationale for these opinions indicated that private records show that the Veteran had a MI in June 1996 and underwent evaluation to include cardiac catheterization prior to bypass surgery. Prior to surgery the cardiac catheterization showed no evidence of heart valve dysfunction. Therefore, the examiner found that the service-connected valvular heart disease had no impact on the Veteran's coronary artery disease beyond the normal progression of such disorder. The examiner noted that the Veteran underwent cardiac catheterization for possible unstable angina in March 2010 which showed open grafts, no blocked lesions; and no valvular disease was noted. Ongoing care and latest treatments notes as of Sept 2012 showed only CAD that is asymptomatic along with long standing hypertension. There was no evidence of symptomatic valvular heart disease noted. Thus, the examiner indicated that the Veteran has coronary artery disease and hypertension that is solely the natural progression of those diseases. There is no evidence of aggravation by asymptomatic mitral valve disease on repeated cardiac evaluations. The examiner further noted that the Veteran's COPD is self induced from noted long standing tobacco abuse in available records and shows no aggravation by asymptomatic mitral valve disease. It has been asserted that several pathologies, including CAD and COPD, are caused or aggravated by the Veteran's service-connected valvular heart disease and his rating should incorporate and compensate him for disability attributable to those conditions. He has also attributed shortness of breath and chest pain to the valvular heart disease. Whereas such associations of symptoms to causes are purely medical matters requiring medical expertise to determine, the Veteran as a lay person is not competent to proffer his opinion as evidence on matters of medical causation. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Veteran is competent to report symptoms associated with cardiac disabilities, but in light of his multiple cardiac diagnoses, the Board will rely upon the medical evidence of record for medical diagnoses and attribution of pathologies to causes. Thus, the Board finds that the preponderance of the evidence is against a finding that the Veteran's valvular heart disease more nearly approximates a rating in excess of 10 percent. In fact, the most recent, extremely thorough, VA examination indicates that the Veteran's valvular heart disease is asymptomatic and attributed any cardiac symptomatology to non-service connected conditions which have no relationship to the valvular heart disease. Although the Veteran has demonstrated dysfunction consistent with an increased 60 percent due to the METs testing in the July 2013 examination report, the Board observes that this finding is not associated with the service-connected valvular heart disease. VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). In this case, the record establishes that the Veteran's ischemic heart disease, coronary artery disease and COPD are not related to the valvular heart disease based on objective testing and the examiner's medical knowledge. The Board must also determine whether the schedular evaluation is inadequate, thus requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2013). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is not inadequate. An evaluation in excess of that assigned is provided for certain manifestations of the service-connected heart condition but the medical evidence reflects that those manifestations are not present in this case. Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. ORDER Entitlement to a disability rating in excess of 10 percent for valvular heart disease, mitral damage, class I, is denied. ____________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs