Citation Nr: 1408321 Decision Date: 02/26/14 Archive Date: 03/07/14 DOCKET NO. 99-22 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for hypertensive vascular disease secondary to organic heart disease with paroxysmal atrial fibrillation and mitral valve prolapse. 2. What rating is warranted for paroxysmal supraventricular tachycardia (previously characterized as paroxysmal atrial fibrillation) from April 17, 2010? WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The case was certified to the Board by the RO in Atlanta, Georgia. This matter was previously before the Board in December 2000 and March 2005. In April 2006, the Board denied entitlement to an increased rating for paroxysmal supraventricular tachycardia and entitlement to a total disability evaluation based on individual unemployability due to service connected disorders. The Veteran appealed the Board's April 2006 decision to the United States Court of Appeals for Veterans Claims (Court). In March 2007, the Court granted a joint motion for remand. The Board remanded the appeal for additional development in July 2007, in part, because the Veterans Law Judge who conducted the September 2000 hearing had retired. The Veteran was afforded the opportunity to attend a hearing before another Veterans Law Judge, which he did in November 2007. Transcripts of both hearings are associated with the claims file. In March 2008 and April 2010, the Board remanded the claims for further development. In February 2012, the Board restored the Veteran's award of service connection for organic heart disease with mitral valve prolapse. It remanded the remaining claims on appeal for further development. This matter was remanded again in April 2013 for further development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. This Virtual VA file has been reviewed. The Board also notes that in December 2013 the Veteran revoked power of attorney from his prior representation and elected to proceed pro se. The issues of entitlement to reimbursement for unauthorized medical expenses and entitlement to vocational rehabilitation benefits are again referred to the RO for appropriate consideration. FINDINGS OF FACT 1. Hypertensive vascular disease was not manifest during active service, hypertension was not manifest to a compensable degree within one year of separation from active duty nor was it caused by or permanently made worse by a service connected disability. 2. At no time since April 17, 2010, has paroxysmal supraventricular tachycardia been manifested by more than four episodes per year documented by electrocardiogram or Holter monitor. CONCLUSIONS OF LAW 1. Hypertensive vascular disease was not incurred in or aggravated by service, and hypertension may not be presumed to have been incurred therein nor was it caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The criteria for an initial rating in excess of 10 percent for paroxysmal supraventricular tachycardia since April 17, 2010 are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.159 , 4.3, 4.7, 4.20, 4.124a, Diagnostic Code 7010 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in October 2003 and May 2008, VA advised the Veteran of the information and evidence needed to substantiate a claim, and provided notice of what part of that evidence that was to be provided by the claimant and what part VA would attempt to obtain. The Veteran was also provided notice how disability ratings and effective dates are assigned in the event service connection is granted. The appeal was most recently readjudicated in the July 2013 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records and VA examination reports. Virtual VA records have also been reviewed. The Board notes that this case was remanded in April 2013, in part, to obtain records from the Atlanta, Georgia VA Medical Center since April 17, 2010. A review of the record discloses that these records along with records from the Augusta, Georgia VA Medical Center were requested and associated with the Virtual VA system. The Board acknowledges that in a January 2012 VA treatment record the Veteran made reference to an abnormal Holter examination at the Augusta VA Medical Center. The Veteran, however, did not indicate the time frame for this examination and it was noted that his previous consult was in 2009. A request for records from the Augusta VA Medical Center did not produce the treatment record discussed during the January 2012 examination. The Board finds, however, that the VA has met its duty to assist as records from the Augusta VA Medical Center were obtained and associated with the file, and there is no showing that the record discussed by the Veteran is within the applicable time period. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. During the November 2007 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(3). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A (a) (2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merit of the claims. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, such as hypertension, may be service connected if incurred or aggravated by service, or if manifested to a degree of 10 percent disabling or more within one year after separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be established for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). While section 3.310 was amended effective October 10, 2006, this claim was filed before the amendment, and as such the current version of 38 C.F.R. § 3.310 is not applicable to the claim on appeal. The Veteran appeals the denial of entitlement to service connection for hypertensive vascular disease secondary to organic heart disease with paroxysmal atrial fibrillation and mitral valve prolapse. After review of the record, the Board finds that the preponderance of the most probative evidence is against the claim. In this regard, service treatment records are devoid of a showing of complaints for and/or diagnosis of hypertension and/or hypertensive vascular disease. The separation examination revealed the appellant's heart and chest were clinically evaluated as normal. His blood pressure readings were within normal limits. At that time, the Veteran reported that he did not know if he had high or low blood pressure. Compensably disabling hypertension is not shown within a year of separation from active duty. The evidence shows that hypertensive vascular disease was not shown until many years after active duty service. The first mention of hypertension in the record is in the late 1990s. The Board acknowledges that examinations in the 1980s and 1990s that preexisted the diagnosis of hypertension may have revealed prehypertensive results. As pointed out by the April 2012 VA examiner, however, a diagnosis of hypertension is based on the average of two or more properly measured readings at each of two or more visits after an initial screen. There is no showing that the prior readings confirmed a diagnosis of hypertension by the normal standards. Therefore, while the independently measured blood pressure reading may have been elevated, they are of little to no probative value. The Board has reviewed all service treatment records, private treatment records and all VA medical records of file. The claims folder does not contain any competent evidence relating hypertensive vascular disease to service or a service connected disability, and neither the appellant nor his representative has presented, identified, or even alluded to the existence of any such opinion. Rather, the VA examiners opined that hypertension is unrelated to both service and/or his service connected organic heart disease with paroxysmal atrial fibrillation and mitral valve prolapse. To that end, the February 2001 VA examiner opined that the Veteran's hypertension was not secondary to valvular disease. The April 2009 VA examiner opined that the hypertension was not the result of the heart conditions or dysrhythmia, and there was no evidence that the Veteran's hypertension was caused by or the result of service. In May 2010, the April 2009 VA examiner added that atrial fibrillation does not cause nor aggravate hypertension and that the relationship is usually one of tachycardia lowering blood pressure, dizziness and even syncope can occur. Also, medications often used to treat tachycardia's are antihypertensive which also reduce blood pressure he stated. Increased blood pressure, he found, would not be an expected result in the face of tachyarrhythmia's or treatment of tachyarrhythmia. An April 2012 VA examiner further opined that the Veteran's paroxysmal atrial fibrillation did not cause or permanently aggravate his hypertensive vascular disease or mild left ventricular hypertrophy. He expressed that atrial fibrillation is not recognized in the medical literature as a cause of or aggravating factor for hypertensive vascular disease. As a layperson the Veteran is competent to report his symptoms, and the circumstances surrounding such. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board acknowledges his contentions, but notes that as a lay person, he is not competent to render an etiology opinion on a complex medical question such as presented here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). To the extent that the Veteran asserts that his hypertension is a result of service, he has not identified or produced any acceptable evidence, medical or otherwise, that would tend to show that his current disability is related to service and/or a service connected disability. The VA medical opinions are persuasive and warrant being assigned greater probative weight. The opinions were rendered by medical professionals with the expertise to opine on the matters at issue in this case. In addition, the examiners addressed the Veteran's contentions and based their opinions following a review of the claims folder as well as a complete physical examination. The most probative evidence is against the claim. In reaching the conclusions above, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). Ratings 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. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of staged ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; Hart v. Mansfield, 21 Vet. App. 505 (2007). Given that the Veteran has appealed the initial evaluation assigned, the severity of his disability is to be considered during the entire period from the initial assignment of the disability rating to the present. Fenderson. The Veteran's service connected paroxysmal supraventricular tachycardia is rated as 10 percent disabling under Diagnostic Code 7010. Diagnostic Code 7010 provides that 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 electrocardiogram or Holter monitor. A 30 percent rating is warranted if there is paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by electrocardiogram or Holter monitor. The evidence preponderates against finding that the Veteran has had more than four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by electrocardiogram or Holter monitor since April 17, 2010. To the contrary, the March 26, 2012 electrocardiogram revealed sinus rhythm with no evidence of atrial fibrillation. The VA examiner stated that the last documented episode found in the records for atrial fibrillation was in 1999 and that the frequency of symptoms which the Veteran attributes to atrial fibrillation had decreased with only one major episode in the last six months. He had minor episodes lasting less than 20 minutes occurring about three times per week. Examination on April 6, 2012 revealed normal Holter findings and no atrial fibrillation. When examined on April 11, 2012, there was a showing of good functional capacity, no abnormal symptoms, no ischemic electrocardiogram changes and/or no abnormal tachycardia or other arrhythmia. The April 2012 treadmill stress test was normal. The Veteran presented to the emergency room on May 3, 2013 with complaints of atrial fibrillation. It was noted that he typically had five to six episodes per year that lasted greater than 20 minutes. His discharge diagnosis was atrial fibrillation. At most, the evidence shows one episode of paroxysmal atrial fibrillation or other supraventricular tachycardia during a year. While a history of five to six episodes per year was noted in May 2013, such have not been documented by electrocardiogram or Holter monitor as required under 38 C.F.R. § 4.124a, Diagnostic Code 7010. The Board recognizes that in January 2012 the Veteran reported that he an abnormal Holter monitor test in a previous examination. The Veteran, however, did not indicate when that examination took place and records from the Augusta VA Medical Center did not disclose such results. For the applicable time frame, the evidence shows one episode documented by electrocardiogram or Holter monitor. These findings are against a rating higher than 10 percent under Diagnostic Code 7010. The Veteran has presented testimony regarding the nature and extent of his paroxysmal atrial fibrillation. The Board acknowledges his complaints of palpitations, shortness of breath, chest discomfort and lightheadedness. The Board, however, assigns greater probative value to the VA examinations and VA medical records than the Veteran's reports of symptomatology. The examinations were conducted by medical professionals with the expertise to comment and opine on the matter at issue. The examiners reviewed the records, which included the Veteran's contentions, and conducted complete physical examinations. The medical findings of record simply do not show that a higher rating is warranted. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. As the preponderance of the evidence is against the claim for a higher rating, the "benefit-of-the-doubt" rule does not apply, and the claim must be denied. See 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). There are no exceptional or unusual factors with regard to the Veteran's disability. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. To the extent that the Veteran has complained of symptoms, his symptoms are specifically contemplated by the rating criteria. Thus, the Veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. ORDER Entitlement to service connection for hypertensive vascular disease secondary to organic heart disease with paroxysmal atrial fibrillation and mitral valve prolapse is denied. A rating higher than 10 percent for paroxysmal supraventricular tachycardia (previously characterized as paroxysmal atrial fibrillation) from April 17, 2010 is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs