Citation Nr: 1337668 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-08 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected atrial fibrillation with mild mitral valve prolapse and regurgitation. ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from November 1975 to November 2003. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This issue was previously before the Board in August 2011 and was remanded for further development. Specifically, the Board requested private medical records since March 2009 be obtained and associated with the claims file. The Board finds this requested action was completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran experienced paroxysmal atrial fibrillation with more than four episodes per year. CONCLUSION OF LAW The criteria for a rating not to exceed 30 percent for service-connected atrial fibrillation with mild mitral valve prolapse and regurgitation have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.104, Diagnostic Code (DC) 7099-7010 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking an increased rating for his service-connected atrial fibrillation with mild mitral valve prolapse and regurgitation (heart condition) currently rated at 10 percent. The Veteran was initially granted service connection and assigned a noncompensable rating in a May 2004 rating decision. In December 2007 the Veteran filed his current claim for an increased rating. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's specific heart condition is not listed on the rating schedule, and therefore the RO rated the Veteran's condition under Diagnostic Code 7099-7010 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded as the first two numbers of the most closely related body part and "99." The Veteran's condition was then rated under the most closely analogous code, Diagnostic Code 7010 for supraventricular arrhythmias. 38 C.F.R. § 4.104. 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 higher and 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. The Board has reviewed all evidence of record and as will be discussed, finds the criteria for the higher and maximum 30 percent has been met. As the increased rating is granted only a limited amount of relevant evidence will be discussed below. The medical evidence reveals that throughout the period on appeal the Veteran was consistently noted to have atrial fibrillation by medical care providers. The Veteran explained in his April 2008 written notice of disagreement because he had previously been clearly diagnosed with atrial fibrillation his doctors instructed him not to go to the emergency room for every episode of paroxysmal atrial fibrillation. Instead, he was to treat these episodes with the prescribed medication cocktail and only seek treatment if normal rhythm did not resume within eight hours. For this reason, there are only a few isolated ECG's of record which reflect the Veteran had atrial fibrillation. The Board concedes these isolated ECG's alone are not sufficient to establish the Veteran experienced more than four episodes of paroxysmal atrial fibrillation within any one year period. However, the record includes extensive additional information which reflects the Veteran continued to have frequent episodes of paroxysmal atrial fibrillation throughout the period on appeal. First, upon his physician's instructions the Veteran kept a log of his atrial fibrillation episodes. His physician remarked the Veteran's kept a "good diary" of these episodes. This document created by the Veteran lists six episodes of atrial fibrillation in 2004, 20 episodes in 2005, 20 episodes in 2006, 21 episodes in 2007, and 25 episodes through November 2008. This lay document created by the Veteran provides evidence he experienced well over four episodes of paroxysmal atrial fibrillation per year. As a lay person, the Veteran is considered to be competent to report what comes to him through his senses, such as experiencing periods of irregular and increased heartbeat. Layno v. Brown, 6 Vet. App. 465 (1994). Therefore the Veteran is competent to report when he experiences the symptoms associated with episodes of paroxysmal atrial fibrillation. In addition, the Veteran's lay testimony regarding the frequency of these episodes have been consistent throughout the appeal and the Board finds no reason to doubt the veracity or credibility of his testimony. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, the Veteran's lay assertions regarding the frequency of his paroxysmal atrial fibrillation episodes are supported by the medical evidence. For example in April 2007 a VA physician opined the Veteran was having "a lot" of atrial fibrillation. The Veteran was also consistently prescribed a cocktail of medications to treat his reoccurring condition. In January 2008 the Veteran was provided with a VA examination. The examiner noted the Veteran had paroxysmal atrial fibrillation since 1999. The Veteran stated the frequency of his symptoms had increased since 2003 and he currently had more than 30 episodes a year, occurring mostly at night, with each episode lasting around five hours. The examiner opined the Veteran had paroxysmal atrial fibrillation but was "mismanaging his medication" and recommended he seek treatment with a cardiologist. The medical evidence continued to reflect the Veteran experienced frequent episodes of atrial fibrillation until in November 2008 the Veteran underwent an ablation procedure due to the frequency of these episodes. Unfortunately, the medical evidence reflects the Veteran continued to have more periods of atrial fibrillation after his ablation procedure in November 2008. These episodes increased in frequency resulting in hospitalization in June 2010 for his condition. During his hospitalization multiple ECG's and other tests reflected the Veteran had atrial fibrillation and "atypical atrial flutter." Following this hospitalization the Veteran had a repeat ablation procedure performed in August 2010 which appears to have largely resolved his symptoms. Therefore the medical evidence establishes the Veteran experienced episodes of paroxysmal atrial fibrillation frequently. A physician commented he had such episodes "a lot," he was provided a variety of medications to treat this condition throughout the period on appeal, was temporarily hospitalized due to increasing episodes, and had two different surgical procedures to treat his condition. These medical records all provide support for the Veteran's claim for an increased rating. Based on the foregoing, the criteria for the higher, maximum 30 percent rating have been met. The Veteran's consistent lay statements, including his detailed log of episodes of atrial fibrillation, reflect he had such episodes well in excess of four times per year. His lay statements are supported by medical evidence which reflects he experienced episodes of atrial fibrillation frequently and required ongoing medication, temporary hospitalization, and two surgical procedures to treat this condition. Finally, VA regulations provide that if the evidence for and against the Veteran's claim is at least in relative equipoise, reasonable doubt will be resolved in the Veteran's favor. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, although the record does not include ECG or Holter monitor reports documenting the Veteran experienced more than four episodes of paroxysmal atrial fibrillation in one year, the Board finds that affording all benefit of the doubt to the Veteran the additional lay and medical evidence establishes he experienced well in excess of four episodes of atrial fibrillation per year. Accordingly his claim for an increased rating is granted. As a 30 percent rating is the highest rating available under Diagnostic Code 7010 a higher schedular rating is not available. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's heart condition that would render the schedular criteria inadequate. The Veteran's main symptoms were complaints of frequent episodes of irregular heartbeat requiring strong medication. The Veteran's lay descriptions of these symptoms were specifically contemplated in the schedular ratings that were assigned and were the primary basis upon which his increased rating was granted. As such, the Board believes that the schedular rating criteria adequately describes the Veteran's disability picture and even if it does not, it would not be found that his disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. However, the record reflects the Veteran continues to be employed at the Citadel. Because the Veteran is still employed the Board finds that Rice is inapplicable since there is no evidence of unemployability. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the present case, required notice was provided by a letter dated in January 2008, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, 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). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with two VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. ORDER The claim for a rating not to exceed 30 percent for his service-connected atrial fibrillation with mild mitral valve prolapse and regurgitation is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs