Citation Nr: 1751356 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-24 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for supraventricular tachycardia, to include on an extraschedular basis. 2. Entitlement to an initial disability rating in excess of 50 percent for generalized anxiety disorder. 3. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1959 to August 1961. These matters come before the Board of Veterans' Appeals (Board) from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. which granted service connection for supraventricular tachycardia and assigned a 30 percent disability evaluation effective September 25, 2005; and service connection for anxiety condition and assigned a non-compensable evaluation effective September 25, 2005. During the pendency of the appeal, in a March 2017 rating decision, the RO increased the disability evaluation for generalized anxiety disorder to 50 percent disabling effective September 25, 2005. Because the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). As for a TDIU, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim when such claim is raised by the record. In November 2017, the Veteran's representative raised the issue of the Veteran's employability. Therefore, in light of the Court's holding in Rice, the Board has considered the TDIU claim as part of her pending increased rating claim and has accordingly listed the raised TDIU claim as an issue despite the fact that the RO never issued a Statement of the Case (SOC) addressing the issue. Jurisdiction of this case currently rests with the RO in New York, New York. The issue of whether new and material evidence has been received to reopen a claim for service connection for posttraumatic stress disorder (PTSD) (raised in a March 2017 lay statement) has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this issue, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issues of an increased evaluation for generalized anxiety disorder and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Throughout the entire rating period on appeal, the Veteran was in receipt of the maximum schedular rating for supraventricular tachycardia. 2. The Veteran's supraventricular tachycardia was not productive of an exceptional or unusual disability picture, marked interference with employment, or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent for supraventricular tachycardia have not been met. 38 U.S.C.A. §1155, 5103 (West 2014); 38 C.F.R. §§ 3.321, 4.21, 4.104, Diagnostic Code 7010 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duty to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2017). Here, the Veteran has not raised any issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board will now review the merits of the Veteran's claims. Increased Rating The Veteran is seeking entitlement to increased initial disability rating for his supraventricular tachycardia. Generally, disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran's symptoms to the criteria in the rating schedule. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for increased rating is the present level of disability. Although the overall history of the veteran's disability shall be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. In all claims for an increased disability rating, VA has a duty to consider the possibility of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the Board will analyze the evidence of record against the appropriate rating criteria to determine the Veteran's disability picture throughout the rating periods on appeal. The Board first notes that it has reviewed all of the evidence in the Veteran's claims file, placing an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record, but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. Supraventricular Tachycardia The Board first turns to the Veteran's claim for an initial disability rating in excess of 30 percent for supraventricular tachycardia. The Veteran's disability has been rated according to Diagnostic Code 7010 for supraventricular arrhythmias. Under this Diagnostic Code, 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 ECG or Holter monitor. A maximum 30 percent rating is warranted for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor. 38 C.F.R. § 4.104, Diagnostic Code 7010 (2017). The Board finds that this Diagnostic Code is the most appropriate for rating the Veteran's supraventricular tachycardia. As such, the Veteran is currently in receipt of the maximum schedular rating available. However, the Board has also considered whether the Veteran is entitled to referral for extraschedular consideration. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal); see also Appellant's Brief dated May 2017 and October 2017. Such referral is appropriate when the evidence presents such an exceptional or unusual disability picture that the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet App 111, 115 (2008). If such an exceptional or unusual disability picture exists, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-16. When these two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1) (2017). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 118-19. In assessing the Veteran's disability picture as due to his supraventricular tachycardia, the Board notes that the Veteran has undergone four VA examinations to date. In March 2006, the Veteran reported the ongoing use of medication to assist with managing his disability. Although the Veteran reported no participation in sports or exercise, he presented with a stable weight and as independent in the activities of daily living. No chest pain or shortness of breath was noted at that time. The most recent paroxysmal atrial tachycardia had occurred in January 2005, and lasted for minutes. The VA examiner noted that the Veteran responded to vagal maneuvers within minutes, and that the Veteran's METs appeared to be within normal limits. Thus, the Veteran presented as asymptomatic, aside from a distant history of palpitations. The Veteran next underwent VA examination in October 2010, when his history of palpitations was noted. During December 2012 VA examination, the Veteran reported ongoing cardiac arrhythmia with intermittent supraventricular tachycardia, which occurs four or more times per year. By way of treatment, the veteran reported a 2009 ablation and repeated follow-ups with EKGs and Holter monitors with his treatment providers. Upon examination, the Veteran demonstrated normal rhythm and heart sounds. The VA examiner thus concluded that the Veteran's disability was "currently manageable," requiring medical visits every three to six months. The Veteran most recently underwent VA examination in March 2015. The Veteran reported ongoing palpitations at the time, and the use of medication to assist with managing this symptom. The Veteran's supraventricular tachycardia was reported as intermittent, although the examiner reported that he was unable to quantify this event due to the lack of supporting medical records pertaining to the Veteran's heart rhythm. No surgical or non-surgical treatments were reported other than the 2009 ablation, and no hospitalizations were indicated. Upon examination, the Veteran typically demonstrated normal results, with no evidence of additional cardiac conditions. The VA examiner further noted the results of an October 2014 stress test with an METs level of 7.5. VA and private treatment records spanning the rating period on appeal additionally contribute to the Board's understanding of the Veteran's disability picture. Said records note the Veteran's intermittent palpitations; use of medication to assist with managing this symptom; and one additional ablation performed in 2011. However, recurrent arrhythmia and chest pain were commonly denied, and the Veteran's condition was generally classified in positive terms. See, e.g., private treatment records dated February 2010 (reporting that the Veteran had "marked overall symptomatic improvement"); November 2016 (reporting Veteran as "clinically stable" with pauses up to three seconds, but absent symptomatic or prolonged pauses). Upon review of the above, the Board does not find that the Veteran's disability picture is so unusual or exceptional in nature as to render the schedular evaluations inadequate. Throughout the entire rating period on appeal, the Veteran's supraventricular tachycardia was primarily productive of occasional palpitations and arrhythmia. However, said symptoms appear to be properly managed through the use of medication and periodic treatment with medical providers. As such, the Veteran's disability has been classified as "manageable" or "asymptomatic" by treatment providers. Moreover, the Veteran's disability has not been related to any additional cardiac conditions, and it does not appear to impact the Veteran's capacity to function in any significant way. Thus throughout the rating period on appeal, the Veteran underwent a total of two procedures, in 2009 and 2011, to assist with managing his symptoms. No additional hospitalizations were reported. Accordingly, the Board finds that the Veteran's disability picture is properly and fully embodied in the schedular criteria, such that an extraschedular referral is not required. See 38 C.F.R. § 4.104, Diagnostic Code 7010 (2017). In reaching this conclusion, the Board is cognizant of the Veteran's frequent testimony regarding the severity of his disability. See, e.g., VA examination dated December 2012 (recording the Veteran's anxiety that if he engages in strenuous activity, he will die). However, the Veteran lacks the appropriate medical training and expertise to competently qualify his symptoms under the General Rating Formula. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-7 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Further, the Veteran's anxiety pertaining to the impact of his condition does not align with the medical evidence of record, which establishes only a moderate disability picture with little interference in the Veteran's day-to-day functioning. Accordingly, the Board lends greater credibility to the medical evidence of record in assessing the impact of the Veteran's disability. In doing so, the Board does not find that extraschedular referral is warranted at this time. Accordingly, the Veteran's claim is hereby denied. Additional Considerations The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an initial rating in excess of 30 percent for supraventricular tachycardia, to include on an extraschedular basis, is denied. REMAND As to the issue of an increased evaluation for generalized anxiety disorder, the Board finds remand is required to provide an SOC on the issue in light of the Veteran's timely filing of a notice of disagreement to the February 2013 rating decision. Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that while the RO issued the March 2017 rating decision which increased the disability evaluation from non-compensable to 50 percent for generalized anxiety disorder and issued an SOC with regard to supraventricular tachycardia, no SOC has been issued with regard to the generalized anxiety disorder. The TDIU issue is intertwined with the above remanded claim and therefore must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998). Accordingly, the case is REMANDED for the following actions: 1. Issue an SOC with respect to the claim of entitlement to an increased evaluation for generalized anxiety disorder. The Veteran should be advised that a timely substantive appeal must be filed in order to perfect the appeal as to this matter. 38 C.F.R. § 20.302(b). The issue is to be returned to the Board only if it is perfected by a timely substantive appeal. 2. Then, adjudicate the Veteran's claim for a TDIU. If the benefit sought on appeal is denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. 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). ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs