Citation Nr: 1751056 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 11-31 333 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an initial rating in excess of 10 percent for atrial fibrillation secondary to diabetes mellitus type 2. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran had active service in the Navy from April 1968 to January 1972, and his decorations include the Combat Action Ribbon and Purple Heart. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania that granted service connection for atrial fibrillation secondary to diabetes mellitus type 2 and assigned a 10 percent rating effective October 21, 2009. In May 2013, the Veteran testified at a personal hearing at the RO before a Decision Review Officer. A transcript of that hearing is of record. In September 2016, the Board remanded this matter in order to afford the Veteran a requested Board hearing. A videoconference hearing was scheduled for February 2, 2017, and the Veteran failed to appear. He has not provided good cause for his failure to appear. The Board acknowledges the Veteran's February 2017 correspondence explaining that he naps and rests during the day and "got lost in time to make arrangements to change date of this conference." While such a statement provides a reason for why he did not arrange for a postponement of the hearing prior to his scheduled hearing date, it does not explain why he did not appear for the hearing on February 2, 2017. What is more, the Board observes that the Veteran's Board hearing request has been pending for years, and he has already postponed two prior Board hearings that were scheduled for April 21, 2014, and November 16, 2016. In November 2016, the Veteran requested postponement of his hearing because he had an appointment later that month that he believed would provide evidence relevant to his appeal. It is unclear why the Veteran could not both testify and attend his appointment, as they were on different days, and then submit the evidence following the appointment. Also, in April 2014, the Veteran indicated the day before his scheduled hearing that he was unable to make the hearing because he was to have a procedure within 48 hours of the hearing and had been advised by a physician not to travel. However, the Veteran has not submitted private treatment records to support that assertion and a review of available VA treatment notes does not show that the Veteran was scheduled for or underwent any procedure within 48 hours of April 21, 2014, nor do the records reference the occurrence of any procedure or advice to avoid travel. It has been over five years since the Veteran first requested a Board hearing in July 2012, and despite being provided three opportunities to appear before the Board, the Veteran has yet to appear for a scheduled hearing and he has failed to provide good cause for his failure to appear for his most recent hearing. Moreover, his statement indicates that he was not planning on appearing but rather, requesting another postponement, and the Board finds that napping and resting during the day is not sufficient reason for failing to appear or to reschedule the hearing, particularly given the two prior postponements. Thus, the Board finds that the Veteran's Board hearing request is considered withdrawn. The issue of entitlement to a disability rating in excess of 30 percent for atrial fibrillation is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal period, the Veteran's atrial fibrillation has more nearly approximated about four episodes per year, documented by electrocardiogram (ECG) or Holter monitor, or otherwise been productive of a continuous irregular rhythm, which is medically managed with medication. CONCLUSION OF LAW The criteria for an initial 30 percent disability rating for atrial fibrillation have been met. 38 U.S.C.S. §§ 1155, 5107 (LexisNexis 2017); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7010 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION After a careful review of the evidence of record, the Board finds, affording the Veteran the benefit of the doubt, that throughout the duration of the appeal, the Veteran's atrial fibrillation warrants a 30 percent initial disability rating under DC 7010. 38 C.F.R. §§ 4.7, 4.104. In this regard, the Veteran was found to have atrial fibrillation during an October 2009 VA examination and on EKG the next day, and subsequent EKG and VA examination in December 2009 also showed atrial fibrillation. The Veteran was then placed on anticoagulant medications including warfarin, which he has been on continuously ever since for his atrial fibrillation. By October 2011, the Veteran's private cardiologist found the Veteran's atrial fibrillation to be chronic, and an October 2013 VA examiner also noted constant atrial fibrillation. VA treatment records thereafter support constant or near constant atrial fibrillation, with a recommendation of cardioversion in March 2012. However, by June 2015, the Veteran had failed multiple cardioversion procedures and, subsequently, additional procedures were discussed including pulmonary vein isolation/ablation and placement of a pacemaker. The Board acknowledges that sinus rhythm was shown on EKG in June 2010, as noted by a September 2011 VA examiner. However, essentially all other rhythm studies of record before and after June 2010 show atrial fibrillation, including the prior October 2009 and December 2009 studies, and subsequent studies in September 2011, October 2011, January 2012, and March 2014. Additionally, irregular heart rhythms were observed on physical examinations in March 2011, September 2011, February 2012, September 2012, December 2012, October 2013, and March 2014. In sum, the Board finds that the Veteran's overall disability picture is of constant or near constant atrial fibrillation, supported by rhythm studies, amounting to more than four episodes per year. Affording the Veteran the benefit of the doubt, the Board finds that a higher 30 percent rating is warranted for the entire period on appeal. 38 C.F.R. § 4.104, Diagnostic Code 7010 (2017). The Board points that 30 percent is the maximum rating available under Diagnostic Code 7010. Thus, the Veteran may only receive a higher rating under a different Diagnostic Code or on an extraschedular basis. The issue of entitlement to a higher or separate rating is discussed in the Remand portion below. ORDER An initial 30 percent rating for atrial fibrillation is granted, effective October 1, 2009. REMAND The Veteran has not been evaluated for his atrial fibrillation since October 2013. Evidence since that time suggests a worsening of his condition, to include evidence of failed cardioversions and discussion of potential placement of a pacemaker in VA treatment notes dating from June 2015 to January 2017. As such, the Board finds that the Veteran should be provided a new examination to determine the current severity of his atrial fibrillation disability prior to adjudicating entitlement to a rating in excess of 30 percent. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (holding that VA is obligated to provide a new examination when evidence indicates that a service-connected condition has become more severe). That examination should identify all symptoms attributable specifically to atrial fibrillation, as well as whether the Veteran has any other heart disability related to his service-connected atrial fibrillation, such as to warrant a higher or separate rating under an alternate diagnostic code. It also appears that the Veteran has received private treatment for his heart at various times during the appeal period. However, only limited private treatment records have been obtained, and none dating since October 2011. Thus, all relevant outstanding private treatment records should be requested on remand. Updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding private treatment records that he wishes VA to obtain, to include records from the Dr. Shaikh and/or Midwest Cardiovascular Specialists, dating from October 2009. In addition, advise the Veteran that he may submit any evidence or information he might have to support his claims, to include lay statements or any relevant medical records he has in his possession, including records associated with his private cardiology treatment. If any properly completed authorization forms are received, request the identified records. If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. In addition, obtain all outstanding VA treatment records and associate them with the claims file. 2. After the development requested in item 1 has been completed to the extent possible, schedule the Veteran for a VA examination to determine the current severity of his atrial fibrillation. The entire claims file should be reviewed in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically indicated diagnostic testing, to include exercise-based or interview-based METs testing, the examiner should complete the disability benefits questionnaire (DBQ) for evaluating heart conditions.. In addition to completing the applicable DBQ, the examiner should provide an opinion regarding the extent to which the Veteran's ischemic heart disease has impaired his ability to meet the demands of a job, either sedentary or physical, during the claim period. In other words, the examiner should describe what types of typical employment activities would be limited as a result of the Veteran's atrial fibrillation. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or 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.S. §§ 5109B, 7112 (LexisNexis 2017). ______________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs