Citation Nr: 1324920 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 11-30 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for rheumatic heart disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to November 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. By a rating decision dated in January 1967, service connection was established for rheumatic heart disease. A 30 percent initial rating was assigned, effective from November 24, 1966. In June 2010, the Veteran filed two claims for an increased rating for his service-connected heart disability. In July 2010, the Veteran filed a claim for an increased rating for "Residual of Mitral Stenosis, w/ L atrial hypertrophy and S/P Mytrial Valve r/o and replacement." The RO initially treated the July 2010 claim as a new claim, but in the February 2011 rating decision, the RO consolidated the June 2010 and July 2010 claims, characterizing the service-connected disability as rheumatic heart disease with atrial fibrillation status post pacemaker and status post valvular surgery with prosthetic mitral value with mild aortic regurgitation and atrial enlargement. Herein, the Board will refer to the service-connected disability as rheumatic heart disease. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. In this case, as will be discussed below, the increased rating claim for the Veteran's rheumatic heart disease is on appeal and the Board concludes that the Court's holding in Rice is applicable, and thus, the Veteran's TDIU claim is properly before the Board, and the issue has been listed on the title page. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The Veteran's rheumatic heart disease is manifested by a workload ranging from 3 to 5 metabolic equivalents (METs), which results in dyspnea, fatigue and dizziness. 2. The most probative competent evidence of record fails to demonstrate that it is at least as likely as not that the Veteran's rheumatic heart disease is manifested by an active infection with valvular heart damage, or valvular heart disease (documented by findings on physical examination and either echocardiogram, Doppler echocardiogram, or cardiac catheterization) resulting in: chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSION OF LAW The criteria for a 60 percent rating, but no higher, for the Veteran's service-connected rheumatic heart disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.100, 4.104, Diagnostic Code 7000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claim Assistance Act of 2000 (VCAA), VA has a duty to notify and assist the Veteran in substantiating his claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform the Veteran about the information and evidence that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the Veteran is expected to provide. 38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b)(1). In an increased rating case, VA must inform the Veteran that he will need evidence demonstrating a worsening of the condition or increase in the severity of the disability and the effect that the worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279 (Fed. Cir. 2009). VA must provide general notice explaining how disability ratings and effective dates are assigned. Id. In June 2010, VA provided a letter to the Veteran informing him that he should provide evidence of the worsening of his condition and the effect the worsening of his condition has on employment, in order to substantiate his increased rating claim for service-connected rheumatic heart disease. This June 2010 letter also stated what evidence the Veteran was responsible for obtaining and what evidence VA was responsible for providing. The letter also explained how VA determines disability ratings and effective dates. Thus, VA has complied with the notice duty required by the VCAA. Additionally, the Veteran has not alleged notice in this case was less than adequate. VA satisfied the duty to assist the Veteran under the VCAA by gathering relevant records. VA has a duty to assist in obtaining the Veteran's service medical records, VA medical records and other relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). In this case, the Veteran's service treatment records, private treatment records, Social Security Administration (SSA) records, and pertinent VA treatment records have been obtained and are in the claims file. Additionally, VA satisfied the duty to assist the Veteran by providing a medical examination to the Veteran. VA is responsible for providing an examination addressing the present severity of the disability in an increased rating claim when there is evidence indicating that the service-connected disability has worsened since the Veteran was last examined. 38 C.F.R. §§ 3.326, 3.327 (2012); See VAOPGCPREC 11-95 (1995). In July 2010, VA provided an examination in relation to the Veteran's increased rating claim for his service-connected rheumatic heart disease. The July 2010 VA examination provided clinical findings necessary to determine if an increased rating for the Veteran's service-connected rheumatic heart disease is warranted in the context of the rating criteria. VA also provided a medical opinion relating to the Veteran's rheumatic heart disease in December 2010. The Board finds the record as it stands includes adequate evidence to allow the Board to decide this matter. Additionally, the Veteran has not identified any relevant evidence that is outstanding. Thus, VA satisfied its duties to notify and assist the Veteran with his claim for an increased rating for his service-connected rheumatic heart disease. As such, appellate review may proceed without prejudice to the Veteran. II. Merits of the Claim The Veteran maintains that an increased rating is warranted for his service-connected rheumatic heart disease. The Veteran states that his condition warrants a higher rating based on the July 2010 VA examination in which he had an estimated workload of 4 METs. In a January 1967 rating decision, service connection was granted for rheumatic heart disease and a 30 percent initial rating was assigned with an effective date of November 24, 1966. The RO has currently rated this disability as Diagnostic Code (DC) 7000, under 38 C.F.R. § 4.104 (2012). In June 2010, the Veteran filed a claim for an increased rating related to his service-connected rheumatic heart disease, which was denied in a February 2011 rating decision that is on appeal. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If the disability more close approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating will be assigned 38 C.F.R. § 4.7 (2012). It is not expected that in all cases all will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). 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 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation already has been established, VA must address the evidence concerning the state of the disability from one year before the claim for an increase was filed until VA makes a final decision on the claim. 38 U.S.C.A. § 5110(b)(2) (West 2002 & Supp. 2013); 38 C.F.R. § 3.400(o)(2) (2012). From the one year period prior to the claim filing, VA must consider whether to "stage" the rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. Consideration of the appropriateness of a staged rating is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Based on the discussion above, the rating period on appeal is based on the June 2010 claim for increase. Diseases of the cardiovascular system are rated under the under the Schedule of ratings-cardiovascular system (schedule) found at 38 C.F.R. § 4.104. The schedule for DC 7000 provides that an evaluation of 30 percent rating is warranted when there is a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when there is evidence of cardiac hypertrophy of dilatation on electro-cardiogram, echocardiogram, or X-ray. Id. A 60 percent rating is warranted when there is more than one episode of acute congestive heart failure in the past year, or workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is warranted during active infection with valvular heart damage and for three months following cessation of therapy for the active infection; or thereafter, with valvular heart disease (documented by findings on physical examination and either echocardiogram, Doppler echocardiogram, or cardiac catheterization) resulting in: chronic congestive heart failure, or when there is workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. Note (2) states that one MET (metabolic equivalent) is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Id. After reviewing the evidence, the Board finds that it warrants a higher rating of 60 percent under DC 7000, based on the manifestations of the Veteran's rheumatic heart disease. The claims file demonstrates that the Veteran's rheumatic heart disease has been manifested by a workload ranging from 3 to 5 METs, which results in dyspnea, fatigue and dizziness as required by the 60 percent rating category. Specifically, in July 2010, the Veteran was afforded a VA examination. An echocardiogram revealed an ejection fraction of 55 - 60 percent. The VA examiner noted that a stress test was contraindicated as the Veteran is a cardiac patient, and should only complete a stress test in the presence of his cardiologist. The July 2010 VA examiner estimated the Veteran's METs as 4 METs and diagnosed the Veteran with rheumatic heart disease with atrial fibrillation controlled by pacemaker. The July 2010 examiner stated that the Veteran was status post valvular surgery twice with prosthetic mitral valve with mild aortic regurgitation and atrial enlargement with residual scars. Additionally, the July 2010 examiner notes the effect of the heart condition is a mild decrease in strenuous activity. The Veteran has reported symptoms of dyspnea. The July 2010 chest x-ray examination produced an impression of moderate emphysematous configuration of the chest suggestive of air trapping from chronic obstructive pulmonary disease (COPD) or reactive airway disease but did not note any implication for this diagnosis or on the METs measurements. In December 2010, a VA medical opinion was obtained for clarification regarding whether co-morbid disabilities exist and if the ejection fraction test or the METs level is more indicative of the Veteran's cardiac functional status. The December 2010 VA examiner opined that the Veteran's METs level would be higher than 4 METs, as the Veteran exercises daily by walking one to two miles on a treadmill, but did not offer an actual METs level estimate. Additionally, the December 2010 VA examiner stated that the estimated METs level, from the July 2010 VA examination, was confounded by the co-morbid conditions of COPD and reactive airway disease, noted in the x-ray taken in July 2010. However, the December 2010 examiner did not explain to what extent the COPD and reactive airway disease symptoms would impact the Veteran's rheumatic heart disease symptoms as is required. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (indicating VA adjudicators must be able to distinguish, by competent and credible evidence, the extent of symptoms that is due to the service-connected disability versus those that are not). Thus, because the December 2010 VA examiner's opinion does not provide an actual METs estimate or address the extent of the symptoms related to COPD and reactive airway disease, it has less probative value than the July 2010 VA examination. The evidence is not absolutely unequivocal that the Veteran has a METs level of 4 METs, compared to merely an abnormal estimate; however, he need only show that the evidence is at least in equipoise on any point of a claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, in light of the problems described above with the December 2010 opinion compared to the July 2010 VA examination results, and when reasonable doubt is resolved in the Veteran's favor, the Board finds that the Veteran has an estimated METs level of 4 METs. Finally, the December 2010 VA examiner opines that Veteran's ejection fraction of 55 to 60 percent, measured in the VA examination in July 2010, is the true estimate of the Veteran's cardiac function rather than the METs estimate. However, the 30 percent rating category does not use ejection fraction as a measurement. Moreover, while the 60 percent rating category does use ejection fraction as a measurement; it is only one of three standards and a Veteran can satisfy any of the three standards separately to reach the 60 percent rating. Thus, a Veteran can satisfy the 60 percent rating standard by more than one episode of congestive heart failure in the past year. A Veteran can also satisfy the standard by workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. Finally, a Veteran can satisfy the standard by left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Here, while the Veteran does not satisfy the ejection fraction standard, he can show that he has an estimated METs measure of 4 METs, which precisely fits into the 60 percent rating category. Therefore, the Veteran's service-connected heart disease has presented a workload of greater than 3 METs, but not greater than 5 METs, which results in dyspnea, fatigue, angina, dizziness, or syncope as required for the 60 percent rating category. Thus, the Board finds that the Veteran's service-connected rheumatic heart disease warrants a higher rating of 60 percent. The Veteran has a long history of rheumatic heart disease; however, the evidence for the Board's consideration is based on the one year prior to the claim. While the evidence of record includes private treatment records, including a November 2009, private treatment record with cardiac testing, the evidence does not show METs testing, which was the relevant measurement in the July 2010 VA examination, was conducted one year prior to the claim. However, when resolving reasonable doubt in the Veteran's favor, the Board concludes that the rating of 60 percent is warranted from the date of the claim. See Hart, 21 Vet. App. at 505. Finally, the claims file does not contain evidence showing that the Veteran's rheumatic heart disease has been manifested by an active infection with valvular heart damage, or valvular heart disease (documented by findings on physical examination and either echocardiogram, Doppler echocardiogram, or cardiac catheterization) resulting in: chronic congestive heart failure, or; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent to warrant a 100 percent disability rating. At the July 2010 VA examination, the notes indicate that the Veteran had congestive heart failure in 2000, which is also supported by medical letter, dated in October 2000, supplied by SSA. However, the evidence in the file does not indicate that the congestive heart failure is chronic as required by the higher rating category and the evidence pertaining to the rating period on appeal does not reflect congestive heart failure. Additionally, as discussed above the Veteran's estimated METs is not 3 METs or less as required by the higher rating category, but an estimated 4 METs. Finally, the Veteran's ejection fraction is not less than 30 as required by the higher rating category, but between 55 to 60 percent. Accordingly, a rating of 100 percent is not warranted for the Veteran's service-connected rheumatic heart disease at any time during the rating period. The Board notes that separate service connection has been established for post surgical scars associated with the rheumatic heart disease. As such, they are not for consideration by the Board in rating the rheumatic heart disease in this decision. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. To accord justice in an exceptional case where the schedular standards are found to be inadequate the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO must determine whether the schedular criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Here, the manifestations of the Veteran's rheumatic heart disease are contemplated, both in kind and severity, by the schedular criteria. The schedule, found at 38 C.F.R. § 4.104, provides for ratings based on the METs score, evidence of cardiac hypertrophy, dilatation or congestive heart failure, left ventricular dysfunction or active infection with valvular heart damage and ejection fraction measurements. Here, the Veteran has experienced dyspnea, fatigue and dizziness. The schedule provides for ratings higher than what has been assigned, based on the METs measured with dyspnea. Similarly, higher ratings are available if his condition results in chronic congestive heart failure or decreased ejection fraction measurements. Thus, greater disability than that suffered by the Veteran is addressed by the schedular criteria. Referral for consideration of an extraschedular rating is not warranted. In sum, there is a basis for a schedular rating higher of 60 percent, but no higher, for the Veteran's service-connected rheumatic heart disease. Change to even a higher rating is not warranted by the preponderance of evidence. Therefore, benefit of the doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an increased rating of 60 percent, but no higher, for rheumatic heart disease is granted, subject to the laws and regulations governing the payment of monetary awards. REMAND The Board finds it necessary to remand the issue of entitlement to a TDIU, to the agency of original jurisdiction for additional development and consideration. As noted in the Introduction, the issue of a TDIU is raised by the record. A request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability which is part of a pending claim for increased compensation benefits. Rice, 22 Vet. App. at 453-54. Here, the record raises the issue of a TDIU. Under 38 C.F.R. § 4.16(a) (2012), if the Veteran has been rated with two or more service-connected disabilities and at least one disability is rated at 40 percent or more, and sufficient additional disability brings the combined rating to 70 percent or more, a total disability rating may be assigned where the schedular rating is less than total, when the Veteran is unable to secure or follow substantial employment as a result of the service-connected disabilities. Here, based on the Board's award above, the Veteran is rated as 60 percent disabling for rheumatic heart disease; thus the 40 percent or more criterion is satisfied. The Veteran has also been rated as 10 percent disabling for diabetes mellitus type 2, 10 percent disabling for tinnitus, and zero percent disabling for bilateral hearing loss, a right foot fracture and surgical scars. The Veteran has a combined rating of 70 percent when the combined rating table at 38 C.F.R. § 4.25 (2012) is utilized. Therefore, the Veteran satisfied the schedular requirements for a TDIU. Additionally, the issue of a TDIU is raised by the SSA records, which indicate the Veteran suffered an embolic stroke in August 2002, and a vocational opinion, dated May 2003, which states that due to the Veteran's advanced age and education, a finding of disabled is appropriate. The SSA disability determination lists disease of the mitral valve as a second diagnosis. In light of above, the issue of a TDIU claim must be remanded for further development. Accordingly, the case is REMANDED for the following actions: 1. Issue a new notice letter to the Veteran and his representative. This letter should contain notice of the information and evidence necessary to substantiate a claim for a TDIU and the manner in which disability ratings and effective dates are assigned for awards of disability benefits. The Veteran and his representative should be given an opportunity to respond to this notice, and any additional information or evidence received should be associated with the claims file. 2. Provide the Veteran a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, for completion. 3. Thereafter, schedule the Veteran for a VA examination and request that, following clinical evaluation of the Veteran, the examiner provide as opinion as to whether it is at least as likely as not that his service-connected disabilities, considered in combination, preclude him from engaging in substantially gainful employment consistent with his education and occupational experience. The claims folder, and Virtual VA records, must be made available to the examiner for review in conjunction with the examination. Rationale must be provided for the opinion proffered. 4. Finally, after undertaking any other development deemed appropriate, adjudicate the issue of entitlement to a TDIU. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case, and afford them an opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs