Citation Nr: 1338632 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-03 529A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an evaluation in excess of 10 percent for paroxysmal atrial tachycardia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to December 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Additional evidence was associated with the Veteran's claim file in October 2013. The Veteran's representative, in the October 2013 Informal Hearing Presentation, waived consideration of evidence submitted after the issuance of the latest Supplemental Statement of the Case (SSOC), which was issued in June 2013. Therefore, the Board has complied with the provisions of 38 C.F.R. § 20.1304. Moreover, the Veteran requested a live videoconference hearing before a Veterans Law Judge of the Board in his February 2009 VA Form 9 and in correspondence from January 2012. However, a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing. 38 C.F.R. § 20.702(e). Here, in October 2013, the Veteran withdrew his request for a hearing in writing, and the Board will therefore proceed to adjudicate his appeal. Id. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran's paroxysmal atrial tachycardia manifested in supraventricular arrhythmias with more than four episodes per year. CONCLUSION OF LAW The criteria for a disability rating of 30 percent for paroxysmal atrial tachycardia have been met, but no higher. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7010 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran seeks an increased rating for paroxysmal atrial tachycardia, which had been evaluated at 10 percent under Diagnostic Code 7011. See 38 C.F.R. § 4.104. However, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). In this case, the Board finds that the Veteran's paroxysmal atrial tachycardia is more appropriately rated under Diagnostic Code 7010, which is the Diagnostic Code used to evaluate supraventricular arrhythmias, rather than Diagnostic Code 7011, which is used to evaluate ventricular arrhythmias (sustained). The evidence of record shows that the Veteran has been consistently diagnosed with supraventricular arrhythmias throughout the appeal period; he has not been diagnosed with ventricular arrhythmias. As such, Diagnostic Code 7010 will be applied. Under Diagnostic Code 7010, a 10 percent rating is warranted if there is 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. See 38 C.F.R. § 4.104. A 30 percent evaluation 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. Id. An evaluation in excess of 30 percent is not available under Diagnostic Code 7010. Id. In the present appeal, the Veteran contends that a higher rating is warranted for his service-connected paroxysmal atrial tachycardia due to a worsening of symptoms starting in approximately 2005. The Veteran then underwent a cardiac ablation in May 2005. In preparation for the procedure, the medical provider noted the Veteran last experienced heart-racing palpitations in mid-April of 2005 and that an EKG from April 2003 was abnormal. In August 2005, the Veteran was afforded a VA heart examination. The examiner diagnosed a supraventricular tachycardia post catheter ablation and described the Veteran's echocardiogram as normal. The heart size was also described as normal, but mild diastolic dysfunction was noted. The examiner did not find significant effects on the Veteran's occupation, but he indicated the condition had a moderate effect on exercise. In his January 2006 Notice of Disagreement (NOD), the Veteran indicated he felt discomfort and pain associated with his supraventricular tachycardia. He stated he would feel like his heart was trying to jump out of his chest, followed by feelings of weakness and fatigue, necessitating rest. In May 2006, the Veteran experienced heart palpitations and dizziness shortly after waking up in the morning. His symptoms lasted for approximately twenty minutes. He then traveled to the Alexandria VA Medical Center (VAMC) for urgent care treatment, where the physicians continued the use of Atenonol to manage the Veteran's symptoms and advised him to return in the future if palpitations lasted more than fifteen minutes. The Veteran was afforded another VA examination in December 2006. At that time, he was again diagnosed with supraventricular tachycardia. An echocardiogram showed normal volumes and normal wall thickness. The Veteran reported episodes of rapid heart beat lasting ten to twenty minutes, occurring four times a year. The Veteran reported discomfort during such episodes, accompanied by symptoms such as dyspnea, dizziness, weakness, and nausea. The Veteran also indicated that after an episode, he would need to sit or lay down because he became unable to function. He also reported needing to pull over if he was driving and experienced an episode. In March 2007, the Veteran's wife submitted a statement, indicating that the Veteran's rapid heart beat will awaken him in the night. In October 2007, the Veteran indicated that his last episode occurred in September and July. He reported heart palpitations approximately five or six times per year, accompanied by dizziness and dyspnea. The results of a Holter monitor were pending at that time. The Veteran's report of supraventricular tachycardia in September and July are consistent with a list of episodes the Veteran compiled and submitted to VA in November 2008. The list identifies six episodes that occurred between September 2006 and September 2007. He also provided an approximate duration of each episode. In May 2013, the Veteran was afforded another VA heart examination. At that time, the Veteran was diagnosed with supraventricular arrhythmia, and more than four episodes were documented in the previous twelve months based on subjective symptoms. An EKG and chest x-ray performed in conjunction with the examination were normal, and an echocardiogram showed normal wall motion and thickness. The examiner concluded that when the Veteran has episodes of supraventricular arrhythmia he is "very disabled" and that his condition results in fatigue. The Veteran also submitted a statement in October 2013, confirming his continued use of Atenonol, as documented in VA records identified above. He also reported having supraventricular arrhythmias more than four times a year. In sum, the evidence shows that the Veteran has provided an accurate and consistent report of more than four episodes of supraventricular arrhythmias per year. Although the Veteran's episodes have not been clearly documented by ECG or Holter monitor, giving him the benefit of the doubt, the Board finds that a rating of 30 percent, and no higher, is warranted under Diagnostic Code 7010. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Moreover, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds no other diagnostic codes would be appropriate to evaluate the Veteran's supraventricular arrhythmias. See Schafrath, 1 Vet. App. at 595. In addition, the Board has considered whether an extraschedular evaluation is warranted under 38 C.F.R. § 3.321(b). 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, which involves 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, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, the Board finds that the scheduler rating criteria adequately contemplate and describe the symptoms and impairment caused by the Veteran's service-connected paroxysmal atrial tachycardia, with both the type and frequency of the Veteran's supraventricular arrhythmias being taken into consideration under 38 C.F.R. § 4.104. Therefore, the first prong of Thun is not satisfied and the Board declines to remand this issue for referral for extraschedular consideration The Veteran has also asserted that his various service-connected conditions have resulted in unemployability. He has also repeatedly indicated, and sent supportive evidence from his VA psychologist, that his posttraumatic stress disorder, which is not service-connected, prevents him from working. The Court of Appeals for Veterans Claims has held that a claim for a total disability rating based on individual unemployability (TDIU) can be inferred as part of the original claim for a higher initial rating in certain circumstances. Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curium). This case differs, however. Here, the Veteran filed a formal TDIU claim in May 2006, which was adjudicated in a June 2007 rating decision. VA can bifurcate adjudication of the TDIU and increased rating claims, as long as the claimant has reasonable notice that this is being done. Locklear v. Shinseki, 24 Vet. App. 311 (2011). Here, the Veteran received independent adjudication of the TDIU issue from the RO. There is nothing in the Rice case that the Board sees as somehow vitiating the finality of the 2007 rating decision. Also, Rice was predicated on the factual situation where the claim of unemployability was based on the claim for an increase before the Board. Here, the Board only has jurisdiction over the rating in effect for one of the Veteran's many service-connected disabilities. Therefore, in the factual and legal circumstances of this case, the Board declines to apply Rice and take jurisdiction over a TDIU claim, and, instead REFERS the Veteran to the RO should he wish to file such another claim in the future. Finally, the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In this case, the Board is granting the benefit sought by the Veteran. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify, the duty to assist, or the duties under 38 C.F.R. 3.103(c)(2), such error was harmless and will not be further discussed. ORDER A rating of 30 percent, but no higher, is granted for the Veteran's paroxysmal atrial tachycardia. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs