Citation Nr: 1803880 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 14-07 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a temporary total evaluation because of treatment for service connected disability requiring hospital treatment or observation. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty during the Gulf War Era from February 1992 to July 1999 in the United States Navy. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Board video conference hearing. A transcript of the hearing has been associated with the claims file. The Board notes that in a May 2017 letter, the Veteran requested his appeal to be expedited due to his congestive heart failure being terminal. See May 2017 VA Form 21-4138. FINDING OF FACT The Veteran was hospitalized for fewer than 21 days for treatment of a non-service-connected cardiovascular disability, diagnosed as non-ischemic cardiomyopathy. CONCLUSION OF LAW The criteria for temporary total disability rating for treatment of service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.29, 4.30 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends he is entitled to a temporary 100 percent disability rating for his hospitalization for his cardiovascular disability. See March 2017 Transcript. He testified that he underwent surgery to install a defibrillator due to his heart beating less than 20 percent. While the Veteran acknowledges that he was in the hospital for only 7 days, he testified that his recovery after the surgical procedure was two to three months. The Veteran's representative argued that the cardiovascular treatments exacerbated the Veteran's service connected atherosclerosis condition; and therefore, a rating for convalescence should be afforded for the period following the June 2010 hospitalization. A. Temporary total rating for service connected disabilities requiring hospital treatment or observation. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29 (2017). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017). In May 2010, the Veteran presented for a cardiology consult after experiencing shortness of breath. The examiner diagnosed him with cardiomyopathy and concluded that it was likely viral in nature given a preceding respiratory illness. The examiner noted a positive family history of paternal cardiomyopathy, which developed at a young age. Determining the diagnosis and etiology of a cardiovascular disability is a complicated medical question involving knowledge of different diseases and their presentation along with interpretation of diagnostic and clinical testing. The Veteran has not demonstrated he has the knowledge, education or training to provide an opinion in such a complicated matter and therefore his opinion as to the etiology of his non-ischemic cardiomyopathy or any exacerbation of his service connected atherosclerosis and hypertension is not competent evidence in this particular case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). In June 2010, the Veteran underwent a cardiac catheterization which was absent for any atherosclerosis or coronary disease. He was diagnosed with non-ischemic idiopathic cardiomyopathy. On June 4, 2010, the Veteran was admitted to the hospital with a diagnosis of cardiogenic shock. He was discharged on June 7, 2010 with a diagnosis of non-ischemic cardiomyopathy. During his course of treatment, it was noted that he had normal coronary arteries, severe non-ischemic cardiomyopathy with ejection fraction measured at 20 percent. An Automatic Implantable Cardioverter Defibrillator (AICD) was installed, via surgical intervention, to treat the Veteran's non-ischemic cardiomyopathy. Reviews of the Veteran's post-surgical records, from 2010 to 2017, reveal that his non-ischemic cardiomyopathy has worsened. His treating physician noted that the Veteran suffers from severe non-ischemic cardiomyopathy, a history of implantable cardioverter-defibrillator (ICD) for nonsustained ventricular tachycardia with previous ICD firings. The Veteran had been hospitalized on multiple occasions for intractable congestive heart disease and the examiner opined that the Veteran's condition is terminal. In July 2010, the Veteran was afforded a VA examination for his heart condition. The examiner reviewed the Veteran's medical history and noted that he sought treatment for shortness of breath in May 2010 and a subsequent echocardiogram (EKG) revealed left ventricular ejection fraction at 40 percent. In June, the Veteran's left ventricular ejection fraction was measured at 20 and he was hospitalized for volume management. A cardiac catheterization revealed no evidence of atherosclerosis as the Veteran's coronary arteries were found to be normal. Upon physical examination, the Veteran's blood pressure was measured as 131/88 and noted to be controlled by medical therapy. The examiner confirmed a diagnosis of non-ischemic cardiomyopathy and opined that it was less likely than not that this condition was related to or caused by his hypertension or residuals of atherosclerotic heart disease. In September 2011, Dr. LA provided a clarifying opinion as to the etiology of the Veteran's non-ischemic cardiomyopathy. He noted that the Veteran's cardiomyopathy was considered viral in etiology based on a May 2010 treatment note, but considered idiopathic (of unknown origin) based on a June 2010 treatment note. Dr. LA concurred with the statement of the cardiologist and concluded that the etiology of the Veteran's non-ischemic cardiomyopathy was very likely viral in etiology. He noted that the cardiologist is considered an expert on the Veteran's cardiovascular conditions, including non-ischemic cardiomyopathy. While the record indicates that the Veteran was hospitalized for treatment of a cardiovascular condition, non-ischemic cardiomyopathy, he is not service connected for this disability. The medical opinion specified that after cardiac catheterization, the Veteran's blood vessels were free of any atherosclerotic pathology. The Board places great probative weight on the opinion of the cardiologist, and expert in cardiomyopathy, which confirmed a viral etiology for the Veteran's treated condition during hospitalization. The Board finds that entitlement to a temporary total evaluation because of treatment for service connected disability requiring hospital treatment or observation is not warranted. The Board recognizes that Veteran's argument that his recovery lasted several months after hospital discharge; however, there is no probative evidence of record that establishes that his treatment was for a service connected disability. B. Convalescent ratings for surgical placement of an Automatic Implantable Cardioverter Defibrillator (AICD) Under 38 C.F.R. § 4.30 (2017), total disability ratings (100 percent) may be assigned if the treatment of service connected disabilities meets certain conditions. Relevant to the Veteran's arguments, § 4.30 (a)(1) states that a total rating will be assigned under this section if treatment of a service connected disability resulted in surgery necessitating at least one month of convalescence. The Veteran has requested such ratings for the surgical treatment of non-ischemic cardiomyopathy he underwent. However, as discussed above, while the Veteran is service connection for cardiovascular disabilities, including hypertension and residuals of atherosclerotic heart disease, the Veteran's non-ischemic cardiomyopathy is not service-connected, and therefore ratings under 38 C.F.R. § 4.30 for treatment of this condition do not apply. ORDER A temporary total evaluation because of treatment for service connected disability requiring hospital treatment or observation is denied. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs