Citation Nr: 1619821 Decision Date: 05/16/16 Archive Date: 05/27/16 DOCKET NO. 09-46 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a cardiac disorder, other than mitral valve prolapse with heart murmur, to include a heart attack or residuals thereof. 2. Entitlement to an evaluation in excess of 30 percent for mitral valve prolapse with heart murmur. 3. Entitlement to an effective date earlier than December 30, 2008, for the assignment of a 30 percent evaluation for mitral valve prolapse with heart murmur. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1992 to January 1998 and had active duty for training from July 1998 to December 1998. These matters come before the Board of Veteran's Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In her November 2009 VA Form 9, the Veteran requested a hearing before a member of the Board. In April 2015, she withdrew her request. These issues were before the Board in May 2015. At that time, the matters were remanded for additional development. That completed, they have been returned to the Board for appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. The issues of entitlement to service connection for a cardiac disability, other than mitral valve prolapse with heart murmur, entitlement to an evaluation in excess of 30 percent for mitral valve prolapse with heart murmur prior to September 15, 2015, and entitlement to effective date earlier than December 30, 2008, for the assignment of a 30 percent evaluation for mitral valve prolapse with heart murmur, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the Veteran's mitral valve prolapse and heart murmur resulted in a work load of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope, on and after September 15, 2015. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for a 100 percent rating for mitral valve prolapse and heart murmur have been met beginning September 15, 2015. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.104, Diagnostic Code 7000 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. 38 U.S.C.A. § 5103 (West 2014); 38 C.F.R. § 3.159(b)(1) (2015). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). In light of the favorable disposition and the remand below, the Board finds that any deficiency in VA's notice or development actions is harmless error with respect to the issue adjudicated in this decision. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more 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). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Veteran's mitral valve prolapse with heart murmur has been rated as 30 percent disabling under Diagnostic Code 7000, which addresses valvular heart disease. Under Diagnostic Code 7000, a 60 percent rating is assigned when the symptoms manifest in the following ways: more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent rating is assigned during active infection with valvular heart damage and for three months following cessation of therapy for the active infection, and 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; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. 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. 38 C.F.R. § 4.104, Note 2. As noted in the introduction, the Board is remanding the portion of the Veteran's appeal for an increased evaluation prior to September 15, 2015. Beginning September 15, 2015, the Board finds that a 100 percent rating is warranted for the Veteran's service-connected mitral valve prolapse and heart murmur. On that day, the Veteran was afforded a VA examination for her claim, pursuant to the Board's May 2015 remand. After examining the Veteran and reviewing all relevant medical records, to include December 2014 private treatment records documenting heart failure or a history of heart failure, the examiner diagnosed congestive heart failure, ventricular arrhythmia, valvular heart disease, and cardiomyopathy. The Veteran reported that she was nearly housebound. She was unable to walk further than 100 yards, becoming winded and fatigued. She would occasionally shop for food using a motorized cart when in the store. Significantly, the examiner conducted an interview-based METs test. This test revealed that the Veteran would have dyspnea, fatigue, and dizziness on a one to three METs workload. The examiner further found that though the Veteran's estimated limitation in METs level was due to the multiple heart conditions diagnosed, it was not possible to accurately estimate the percent of METs limitation attributable to each condition, to include the service-connected mitral valve prolapse. The Board notes that when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disorder. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). In this case, the examiner was unable to differentiate the estimated level of METs limitation attributable to the Veteran's service-connected mitral valve prolapse with heart murmur from her non-service connected heart disabilities. Thus, the Board must resolve reasonable doubt in the Veteran's favor and find that the Veteran's mitral valve prolapse and heart murmur results in a workload of 3 METs or less that results in dyspnea, fatigue, and dizziness. Considering this evidence, the Board finds that a 100 percent disability rating is warranted beginning September 15, 2015. The examination shows that a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope. As the Veteran's mitral valve prolapse with heart murmur has been rated as 100 percent disabling beginning September 15, 2015, the Board finds consideration of an extraschedular rating unwarranted. ORDER On and after September 15, 2015, a 100 percent rating is granted for the Veteran' mitral valve prolapse and heart murmur, subject to regulations governing the payment of monetary benefits. REMAND Remand is required to obtain relevant federal records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). The record does not contain any VA treatment records from between January 2007 and June 2010. There is no indication that the Veteran did not receive treatment from VA during this time period, as he was thereafter. Significantly, this period is highly relevant to the issues presently on appeal before the Board. Remand is necessary, therefore, in order to obtain any outstanding VA treatment records. Remand is also necessary to obtain a new medical opinion for the Veteran's claim of entitlement to service connection for a cardiac disorder, other than mitral valve prolapse with heart murmur. The Veteran claims she has a separate heart disorder that was caused by her service-connected hypertension and mitral valve prolapse with heart murmur. VA afforded the Veteran an examination for this claim in September 2015. After examining the Veteran and reviewing all relevant medical records, to include December 2014 private treatment records documenting heart failure or a history of heart failure, the examiner diagnosed congestive heart failure, ventricular arrhythmia, valvular heart disease, cardiomyopathy, and hypertensive heart disease. The Board notes the Veteran's valvular heart disease and hypertensive heart disease are presently service-connected. With regard to the cardiomyopathy and the congestive heart failure, the examiner initially stated that the etiology was hypertension and that the ventricular ectopy had an unknown etiology. Then the examiner, however, opined that these conditions were not due to the Veteran's service-connected heart mitral valve prolapse with heart murmur and her hypertension. The examiner explained that the Veteran's hypertension and mitral valve prolapse with heart murmur were risk factors for many cardiovascular diseases, to include cardiomyopathy, congestive heart failure, and ventricular ectopy. After providing other risk factors, such as obesity, sedentary lifestyle, and tobacco use, the examiner found that there was no direct nexus present between the Veteran's non-service connected heart diagnoses and her mitral valve prolapse with heart murmur and her hypertension. The Board finds that this opinion is inadequate as it provides conflicting conclusions. Thus, the September 2015 VA opinion for the Veteran's claims is internally inconsistent regarding the etiology of any cardiac condition other than the Veteran's service-connected mitral valve prolapse with heart murmur and hypertension. Further, the September 2015 opinion did not address whether any diagnosed non-service-connected heart disability was aggravated by a service-connected disability. Remand is necessary to obtain an adequate opinion. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. In particular, obtain any outstanding VA treatment records from January 2007 through 2010. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her representative. 2. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of any cardiac disease other than mitral valve prolapse with heart murmur or hypertension, to include congestive heart failure, cardiomyopathy, and ventricular arrhythmia. The entire claims file should be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner is asked to provide the following opinions: a. Is it at least as likely as not (50 percent or greater probability) that the Veteran's congestive heart failure, cardiomyopathy, and ventricular arrhythmia had their onset during military service or are otherwise related to such service? b. Is it at least as likely as not (a 50 percent or greater probability) that congestive heart failure, cardiomyopathy, and ventricular arrhythmia were caused by the Veteran's service-connected mitral valve prolapse and heart murmur or her service-connected hypertension? c. Is it at least as likely as not (a 50 percent or greater probability) that congestive heart failure, cardiomyopathy, and ventricular arrhythmia has been aggravated (permanently worsened) by the Veteran's service-connected mitral valve prolapse and heart murmur or her service-connected hypertension? The examiner must specifically address the conflicting findings in the September 2015 examination. 4. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs