Citation Nr: 1343387	
Decision Date: 12/31/13    Archive Date: 01/07/14

DOCKET NO.  10-31 480	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an initial compensable evaluation for supraventricular arrhythmias (SVT).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. L. Wolinsky Associate Counsel







INTRODUCTION

The Veteran had active military service from November 2007 to September 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  The Veteran seeks an initial compensable evaluation for supraventricular arrhythmias.

The Veteran requested a BVA hearing by live videoconference in his VA Form 9, Appeal to Board of Veterans' Appeals received in July 2010.  The Veteran withdrew his request for a BVA hearing in August 2013 and the hearing request is therefore considered withdrawn.  38 C.F.R. § 20.704(e) (2013). 

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 electronic "Virtual VA" system to insure a total review of the evidence. 
 

FINDING OF FACT

Supraventricular arrhythmias have been manifested by more than four episodes per year.

CONCLUSION OF LAW

The criteria for a 30 percent evaluation for supraventricular arrhythmias are met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.104, Part 4, Diagnostic Code 7010 (2013).





REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

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, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a).

The appeal arises from a disagreement with an initial rating decision in September 2009, which granted service-connection for supraventricular tachycardia at a noncompensable rating.  The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The duty to assist the Veteran has also been satisfied in this case. The RO has obtained the Veteran's available service treatment records, as well as his post service medical records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  A VA exam for service-connection for the Veteran's supraventricular tachycardia was conducted in May 2009.  38 C.F.R. § 3.159(c)(4).  The Veteran additionally underwent a VA heart examination for rating purposes in July 2011.  At the exams the examiner reviewed the Veteran's complaints, medical history, conducted a physical examination and gave a diagnosis.  Since the examinations included sufficient detail as to the current severity of the Veteran's supraventricular tachycardia, the Board concludes that the examinations are adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). 
 
Legal Criteria

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where entitlement to compensation has already been established, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2.  In instances in which a veteran disagrees with the initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period.  Fenderson v. West, 12 Vet. App. 119, 126   (1999).  

If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.

Under Diagnostic Code 7010, a 10 percent evaluation is warranted when 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.  A 30 percent evaluation is assigned for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 

Background

The evidence from the Veteran's STRs indicate that he was diagnosed with supraventricular tachycardia in June 2008.  The Veteran was medevac'd from Iraq to Landstuhl Germany, and then to the Naval Medical Center in San Diego due to his rapid heart rate.  The Veteran reported that his first episode occurred in December 2007, spontaneously while resting.  The episode lasted five minutes, the Veteran experienced chest tightness, and shortness of breath, the Veteran denied any radiation of discomfort, lightheadedness, or diaphoresis.  The Veteran stated that he had a history of six episodes total, with the longest one lasting forty-five minutes.  The episodes are controlled by slow breathing, all episodes had shortness of breath, and only one had lightheadedness.  

Electrocadiolography (ECG) testing was performed on the Veteran in June 2008.  On one occasion the Veteran showed a normal ECG with normal heart rate.  On a separate occasion an ECG noted tachycardia in June 2008.  In June 2008 the Veteran recorded a heart rate of 130 beats a minute.  The Veteran underwent an unsuccessful cardiac ablation in August 2008.

In May 2009 the Veteran underwent a VA examination.  The examiner confirmed that the Veteran had attacks via EKG.  The examiner gave a diagnosis of paroxysmal supraventricular tachycardia with onset March 2008 in military service, with continued episodes monthly.  A VA treatment note from February 2009 states that the after a detailed review of the Veteran's systems the examiner found positive evidence for two to three SVT events a month, which last about ten to twenty minutes.  The Veteran described palpitations and light headedness at times, the Veteran denied chest pain or pressure.  The Veteran was given an event monitor to track his cardiac output.

In March 2009 the Veteran had a follow-up which showed SVT at a rate of 240 beats per minute, which would go back to normal after five minutes.  In April 2009, the Veteran decided that he did not want a second ablation procedure.  The VA staff stated that the Veteran is having about one episode monthly lasting about five minutes, and that the Veteran is usually able to lie down, cough and relax and they subside.  VA treatment from October 2009 shows that the Veteran stated that he did not have any SVT events in several months, and that his SVT was stable with no changes.  In December 2010 the treatment reveals that the Veteran stated that he has SVT episodes once or twice a month.  In February 2011 the Veteran stated that he has had one episode of palpitations since starting on diltiazem in late December.  In May 2011 the Veteran had stated that his episodes decreased significantly, that he has one episode about every five weeks, and the longest duration had been for fifteen minutes.  The Veteran was told to continue using diltiazem daily.    

The Veteran underwent a VA heart increase examination in July 2011.  The examiner reported that since the Veteran's last exam, he did not have any Holter or ECG monitoring performed.  The examiner stated that since the Veteran was placed on diltiazem, that the Veteran's episodes had been every five weeks, and lasted about five minutes.  The Veteran was given a continued diagnosis of paroxysmal supraventricular tachycardia and the examiner stated that it had no effects on the Veteran's usual occupation and work.  

In August 2011 the Veteran stated no change in frequency of SVT episodes, and that his last episode was two weeks ago and lasted five minutes.  The Veteran exhibited a normal pulse of 62 beats per minute.  The assessment was for the Veteran to continue his current dose of dilitiazem and follow up if any change in frequency of SVT episodes.  The Veteran was given a Holter monitor.  The results of that monitoring show that the Veteran had recorded 70, 60, 88, 134, 41, 100, 79, heart beats per minute at various points of the day.  The summary of heart rate for the Veteran shows an average of 71 beats per minute and a maximum rate of 134 beats per minute.                                

Analysis

The evidence of record shows that the Veteran has supraventricular arrhythmias manifested by more than four episodes per year .  The Veteran has had continued episodes despite being described medication.  Although these episodes have not all been confirmed by ECG or Holter monitor, medical records leave little doubt that these episodes have occurred. Consequently, the Board finds that the criteria for a 30 percent initial rating have been met. The benefit of the doubt is resolved in the Veteran's favor. U.S.C.A. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.104, Part 4, Diagnostic Code 7010.  

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App.589   (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1)(2011); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.

The evidence of record does not identify any factors which may be considered to be exceptional or unusual with respect to the Veteran's service-connected supraventricular arrhythmias. There is no unusual clinical picture presented, nor is there any other factor which takes the disability outside the usual rating criteria. The Veteran's SVT episodes, which include shortness of breath, elevated heart rate and occasional lightheadedness, are adequately contemplated by the rating criteria under Diagnostic Code 7010.  As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the Veteran's supraventricular arrhythmias presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Thus, referral of this issue to the appropriate VA officials for consideration of extraschedular evaluations is not warranted in this case.

The Board has considered the decision of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki.  In that case, the Court held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation (whether in an original claim or as part of a claim for increased rating).  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, the Veteran has not submitted a claim for TDIU and in fact the evidence shows that he remains employed full-time as a sales associate at a sportsman store, while also having started his own business.  Therefore, the Board finds that TDIU based on the Veteran's service-connected supraventricular arrhythmias is not warranted. 
 
     
ORDER

An initial rating of 30 percent for supraventricular arrhythmias is granted, subject to laws and regulations applicable to payment of VA monetary benefits.



____________________________________________
WAYNE M. BRAEUER
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs