Citation Nr: 1333827 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 98-05 465A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased (compensable) rating for recurrent rheumatic fever with pericarditis. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from July 1969 to March 1970. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from a January 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Oakland, California (RO). In August 2004 and May 2007, the Board remanded the matter for additional evidentiary development. In a March 2009 decision, the Board denied a compensable rating for recurrent rheumatic fever with pericarditis. The appellant appealed the Board's March 2009 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2011 Memorandum Decision, the Court vacated the Board's decision and remanded the matter for readjudication. In September 2012, the Board remanded the matter to the RO for additional evidentiary development. In April 2013, the Board solicited a medical expert opinion from a cardiologist in connection with the appeal. See VHA Directive 2010-044, dated September 29, 2010; 38 U.S.C.A. §§ 5103A, 7109 (West 2002); 38 C.F.R. § 20.901 (2013). That opinion was received in June 2013. Later that month, a copy of the medical opinion was provided to the appellant and he was offered the opportunity to present additional evidence or argument in accordance with 38 C.F.R. § 20.903 (2013), but he did not respond. FINDINGS OF FACT The appellant has not had a recurrence of rheumatic fever since service and his current rheumatic fever residuals consist of trace mitral valve leaflet thickening. He exhibits no other cardiac residuals or disabling effects which are due to the in-service rheumatic fever with pericarditis, including dyspnea, cardiac manifestations, diastolic murmur with characteristic EKG manifestations, an enlarged heart, elevation of systolic blood pressure, arrhythmias, a decreased METs workload, fatigue, angina, dizziness, syncope, or left ventricular dysfunction; nor is it shown that continuous medication is required to treat any residual of the service-connected recurrent rheumatic fever with pericarditis. CONCLUSION OF LAW The criteria for a compensable rating for recurrent rheumatic fever with pericarditis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997), (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. In October 2003, August 2004, and May 2007 letters, VA notified the appellant of the information and evidence needed to substantiate and complete his claim, and of what part of that evidence he was to provide and what part VA would attempt to obtain for him. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013). The May 2007 letter also included the additional notification requirements imposed by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Since the issuance of these letters, the RO has reconsidered the appellant's claim, most recently in the March 2013 Supplemental Statement of the Case. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (holding that the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an Statement of the Case or Supplemental Statement of the Case, is sufficient to cure a timing defect). In addition to these notification letters, the Board observes that the issue on appeal has been the subject of a prior Board decision and as well as a memorandum decision from Court, both of which included detailed discussions of the information and evidence needed to substantiate the claim. Under these circumstances, any defect in VA's VCAA notification actions are nonprejudical given the appellant's actual and/or constructive knowledge of the information and evidence necessary to substantiate her claim. See e.g. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds sub nom. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (noting that the purpose of the VCAA notice requirement is not frustrated if, for example, the claimant has actual knowledge of what is needed or a reasonable person could be expected to understand what is needed). With respect to VA's duty to assist, the record shows that VA has undertaken all necessary development action. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The appellant's service treatment records are on file, as are all available post-service clinical records which the appellant has specifically identified and authorized VA to obtain. The appellant has not argued otherwise or specifically identified any outstanding evidence despite being given the opportunity to do so. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2), (3) (2013). Additionally, as set forth in more detail below, the appellant has been afforded multiple medical examinations in connection with this claim and VA has obtained multiple medical opinions. 38 C.F.R. § 3.159(c) (4) (2013). In the April 2011 memorandum decision referenced above, the Court held that the December 2008 medical expert opinion obtained by VA was inadequate because the cardiologist failed to address whether the appellant's mitral valve leaflet thickening and left atrial enlargement were related to his service-connected rheumatic fever with pericarditis and failed to provide a rationale for his conclusion that the appellant's left ventricle hypertrophy was not a manifestation of rheumatic heart disease or rheumatic fever with pericarditis. Pursuant to the Court's order, VA thereafter attempted to schedule the appellant for a VA medical examination for the purpose of obtaining an adequate medical opinion in support of his claim. According to documentation in the record, the appellant repeatedly failed to report for the scheduled examinations, initially citing a death in the family then indicating that he was housebound and unable to report for an examination. To comply with the Court's order, therefore, the Board obtained a medical expert opinion from a VA cardiologist in June 2013. The Board finds that the opinion obtained is adequate and in compliance with the Court's order. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The appellant has not argued otherwise. Sickels v. Shinseki, 643 F3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary on the issue now being decided. Background The appellant's service treatment records show that in August 1969, he was hospitalized for a recurrence of rheumatic fever. He reported that he had previously been treated for rheumatic fever at the age of 13. Diagnostic studies performed during the course of hospitalization included serial chest X-rays showing some increase in size of the cardiac silhouette and serial electrocardiograms showing changes consistent with pericarditis. Over the course of treatment, the appellant's heart size returned to normal and his pericarditis resolved. The diagnosis on discharge from the hospital in December 1969 was rheumatic fever, acute, recurrent, existed prior to service, and aggravated by service. In January 1970, a medical board determined that the appellant was unfit for retention in the military because of his history of rheumatic fever. At the time of his discharge from service in March 1970, the appellant was asymptomatic and exhibited no evidence of a valvular lesion. In March 1970, the appellant filed an original application for VA compensation benefits, seeking service connection for rheumatic fever. In connection with his claim, he was afforded a VA compensation and pension examination in June 1970 which showed that his rheumatic fever had resolved with treatment and that he was currently asymptomatic. Based on this evidence, in a July 1970 rating decision, the RO awarded service connection for recurrent rheumatic fever with pericarditis. The RO assigned an initial 100 percent disability rating effective from March 17, 1970, a 30 percent disability rating from September 17, 1970, and a zero percent rating from March 17, 1973, pursuant to the rating criteria then set forth at Diagnostic Code 7000. The Board observes that the zero percent rating has remained in effect to date. In August 1997, the appellant submitted a claim for an increased rating for his service-connected recurrent rheumatic fever with pericarditis. In connection with his claim, the appellant was afforded a VA medical examination in May 2005 for the purpose of identifying all current manifestations of his service-connected recurrent rheumatic fever with pericarditis. On examination, the appellant exhibited markedly decreased cardiac function. He was able to achieve a maximum of 4.6 METs during a stress test. In June 2005, an echocardiogram was performed and showed findings of left ventricular hypertrophy and mitral valve leaflet thickening. In an April 2006 addendum to the May 2005 VA examination report, the examiner indicated that after reviewing the record, it was her opinion that it is less likely than not that the appellant's decreased cardiac function was attributable to his in-service pericarditis/rheumatic fever. In September 2007, the appellant again underwent VA medical examination for the purpose of clarifying whether any current clinical findings were attributable to his service-connected rheumatic fever with pericarditis. Findings on examination included mitral valve leaflet thickening, mild left ventricular hypertrophy, and angina and dyspnea at over four METs. The aortic, pulmonary, and tricuspid valves were noted to display normal structure and function. The diagnoses were history of rheumatic fever with pericarditis; approximate METs at this time is 4.6. After reviewing the record, the examiner again concluded that there was no objective evidence that the appellant had any current organic cardiovascular disability related to his service-connected recurrent rheumatic fever with pericarditis, including any valvular lesions, enlargement of the heart, diastolic murmur with characteristic EKG manifestations, or any other cardiac manifestations, including congestive heart failure. In October 2007, the appellant underwent additional VA diagnostic testing, including a repeat echocardiogram and exercise test. The appellant was again able to achieve a work level of 4.6 METs. An echocardiogram again showed left ventricular hypertrophy as well as left atrial enlargement. In a March 2008 opinion, the VA examiner indicated that the echocardiogram findings of left ventricular hypertrophy and left atrial enlargement were not residuals of service-connected rheumatic fever and concluded that the appellant currently exhibited no cardiac conditions related to rheumatic fever. In December 2008, the Board sought a medical expert opinion from a VA cardiologist. After reviewing the record, he concluded that there was no evidence that the appellant's decreased functional capacity as reflected in stress tests was etiologically related to his service-connected recurrent rheumatic fever with pericarditis. The cardiologist further concluded that based upon the September 2007 VA medical examination and the echocardiograms performed in June 2005 and October 2007, there was no evidence that the appellant exhibited rheumatic heart disease. Finally, the cardiologist concluded that the left ventricular hypertrophy identified on the June 2005 echocardiogram was unlikely a manifestation of the appellant's service-connected rheumatic fever with pericarditis. As set forth above, in April 2013, the Board sought another medical expert opinion in connection with the appellant's claim. In a July 2013 opinion, a VA cardiologist indicated that he had reviewed the appellant's claims file in detail. Based on that review, he indicated that it was his opinion that the appellant currently exhibited no residuals or disabling effects due to the service-connected recurrent rheumatic fever with pericarditis. He explained that echocardiogram had shown that the appellant exhibited no structural heart disease that could be attributable rheumatic fever with pericarditis. He explained that findings which were attributable to rheumatic fever included hemodynamically significant mitral or aortic valve stenosis or diastolic impairment but that these characteristic findings were absent on the appellant's test. The examiner further indicated that his review of the record indicated that the appellant currently exhibited three cardiac abnormalities, left ventricular hypertrophy, left atrial enlargement, and trace mitral valve leaflet thickening. He indicated that the first two cardiac abnormalities the appellant exhibited were not due to the service-connected recurrent rheumatic fever with pericarditis. Rather, they were more likely a secondary effect of the appellant's nonservice-connected hypertension. The VA cardiologist indicated that although the third abnormality, trace mitral valve leaflet thickening, could be the result of the normal aging process, it was at least as likely as not a manifestation of the service-connected recurrent rheumatic fever with pericarditis. He explained, however, that as he had earlier discussed, diagnostic testing had shown that the appellant did not exhibit mitral or aortic stenosis, or indeed any other cardiac symptom or condition, which was consistent with the service-connected recurrent rheumatic fever. Applicable Law Disability evaluations 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 (West 2002); 38 C.F.R. Part 4 (2013). Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2013). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (2013). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2013). The appellant's service-connected recurrent rheumatic fever with pericarditis is evaluated under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7000, pertaining to valvular heart disease (including rheumatic heart disease). During the lengthy pendency of this claim, the criteria for evaluating the appellant's disability were amended. See 62 Fed. Reg. 65,207 (Dec. 11, 1997) (codified at 38 C.F.R. § 4.104, Diagnostic Codes 7000 to 7123 (effective January 12, 1998); see also 71 Fed. Reg. 52,457 (Sept. 6, 2006) (codified at 38 C.F.R. 4.100 (effective Oct. 6, 2006). The RO has considered the appellant's claim under both the old and amended rating criteria and the appellant has been apprised of both versions of the rating criteria. Taking these factors into consideration, the Board will proceed with consideration of this appeal, applying the version of the criteria which is more favorable to the appellant, if any, subject to applicable effective date limitations. See VA O.G.C. Prec. Op. No. 3-2000 (Apr. 10, 2000), 65 Fed. Reg. 33,421 (2000); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to January 12, 1998, the rating criteria for rheumatic heart disease provided as follows: A 10 percent rating following established active rheumatic heart disease with identifiable valvular lesion, slight, if any dyspnea, and the heart was not enlarged. A 30 percent rating from the termination of an established service episode of rheumatic fever, or its subsequent recurrence, with cardiac manifestations, during the episode or recurrence, for 3 years, or diastolic murmur with characteristic EKG manifestations or definitely enlarged heart. A 60 percent rating for a definitely enlarged heart; severe dyspnea on exertion, elevation of systolic blood pressure, or such arrhythmias as paroxysmal auricular fibrillation or flutter or paroxysmal tachycardia; more than light manual labor is precluded. A 100 percent rating for definite enlargement of the heart confirmed by roentgenogram and clinically; dyspnea on slight exertion; rales, pretibial pitting at end of day or other definite signs of beginning congestive failure; more than sedentary employment is precluded. See 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997) (effective prior to January 12, 1998). Under the criteria in effect from January 12, 1998, valvular heart disease (including rheumatic heart disease) is evaluated as follows: A 10 percent rating is assigned for rheumatic heart disease resulting in a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is assigned for rheumatic heart disease resulting in 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 dilatation on electro-cardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned for rheumatic heart disease resulting in more than one episode of acute congestive heart failure in the past year, or; a 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. A 100 percent rating is assigned for rheumatic heart disease 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 fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7000 (2013) (effective January 12, 1998). In every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2013). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for recurrent rheumatic fever with pericarditis. As a preliminary matter, the Board notes that the record does not show, nor does the appellant contend, that he has had a recurrence of rheumatic fever since service. As noted, the rating criteria in effect prior to January 12, 1998, provided for a 10 percent rating following established active rheumatic heart disease where there was an identifiable valvular lesion, as well as slight, if any dyspnea, and the heart was not enlarged. As set forth above, although the appellant may exhibit trace mitral valve leaflet thickening as a result of his in-service rheumatic fever, the record consistently shows that he exhibits no other cardiac abnormalities or symptoms or, indeed, any other manifestation which is attributable to his service-connected rheumatic heart disease with pericarditis, including valvular lesions, dyspnea, or an enlarged heart. Indeed, VA has obtained multiple medical examinations and opinions which have consistently shown that the appellant exhibits no disabling effects which are due to his service-connected rheumatic fever with pericarditis, including a diastolic murmur with characteristic EKG manifestations, an enlarged heart, elevation of systolic blood pressure, arrhythmias, a decreased METs workload, fatigue, angina, dizziness, syncope, or left ventricular dysfunction; nor is it shown that continuous medication is required to treat any residual of the service-connected recurrent rheumatic fever with pericarditis. There is no other probative evidence which suggests otherwise. Rather, the appellant's current cardiac pathology and symptomatology are associated with his nonservice-connected hypertension and his current medication regimen reflects treatment for secondary prevention of coronary artery disease, not treatment for chronic residuals of rheumatic fever. Thus, these factors and symptoms may not be considered for the purpose of supporting a compensable rating for the service-connected residuals of rheumatic fever with pericarditis. 38 C.F.R. § 4.14; see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation must be avoided). The Board further notes that in a July 2013 opinion, a VA cardiologist indicated that although the appellant did exhibit significant cardiac abnormalities such as left ventricular hypertrophy and left atrial enlargement, such pathology was more likely a secondary effect of the appellant's nonservice-connected hypertension. The VA cardiologist explained that diagnostic testing had shown that the appellant exhibited none of the pathology typically associated with rheumatic heart disease, such as mitral or aortic stenosis, or indeed any other cardiac symptom or condition consistent with rheumatic fever. The Board finds this medical opinion to be probative. It was provided by a VA cardiologist, a medical professional with the specialized expertise necessary to opine on the medical matter at issue in this case. Moreover, the cardiologist predicated his opinion on a full reading of all available records and provided an explanation for the opinion rendered. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Again, there is no other probative evidence of record which contradicts his opinion or otherwise suggests that the appellant currently exhibits any disabling manifestations of recurrent rheumatic fever with pericarditis or that he has met the criteria for a compensable rating under either version of Diagnostic Code 7700 for any period of the claim. In reaching this decision, the Board has also considered whether an extraschedular rating is warranted with respect to the appellant's recurrent rheumatic fever with pericarditis. Bagwell v. Brown, 9 Vet. App. 157 (1996) (the question of extraschedular rating is a component of a claim for an increased rating). After reviewing the record, however, the Board finds that there is no basis for further action on this question as there is no indication of an exceptional or unusual disability picture such that the schedular criteria for the appellant's service-connected recurrent rheumatic fever with pericarditis are inadequate. As discussed above, there are no current symptoms associated with the appellant's service-connected disability which are not contemplated by the Rating Schedule. There is no objective evidence of record demonstrating that the appellant's service-connected disability markedly interferes with his employment or that he has been frequently hospitalized due to his service-connected disability. In fact, there is no indication that he has been hospitalized for treatment of service-connected rheumatic fever with pericarditis since service separation. Under these circumstances, the Board finds no evidence to indicate referral for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the Board has considered the Court's decision in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, however, the record on appeal contains no indication that the appellant is unemployable as a result of his service-connected disability and he has not expressly contended otherwise. Thus, consideration of a total rating based on individual unemployability due to service-connected disability is not warranted here. For the reasons and bases discussed above, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating for recurrent rheumatic fever with pericarditis. To that extent, the benefit of the doubt doctrine is not for application as the weight of the evidence is against the claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an increased (compensable) rating for recurrent rheumatic fever with pericarditis is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs