Citation Nr: 21012142 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 12-23 180 DATE: March 3, 2021 ORDER Entitlement to an initial disability rating of 30 percent for the period prior to November 24, 2020 is granted. Entitlement to an initial disability rating in excess of 30 percent is denied. FINDINGS OF FACT During the entire period on appeal, the Veteran’s atrial fibrillation manifested by a workload between 5 and 7 METs with dizziness and dyspnea, but not with a workload of 5 METs or less, left ventricular dysfunction with an ejection fraction below 50 percent, or documented myocardial infarction, chronic congestive heart failure, or acute congestive heart failure. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 30 percent, for atrial fibrillation for the period prior to November 24, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.104, Diagnostic Code 7010, 7011. 2. The criteria for entitlement to an initial disability rating greater than 30 percent, for any part of the appeal period, for atrial fibrillation, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.104, Diagnostic Code 7010, 7011. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service in the United States Navy from July 1989 to July 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). During the pendency of the appeal, a January 2021 rating decision increased the disability rating to 30 percent effective from November 24, 2020. As higher ratings are potentially available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). This matter was previously before the Board in February 2018. The claim was returned to the Board for appellate review in February 2021. I. Duty to Assist The Veteran has not raised any issues with the duty to notify or duty to 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). II. Entitlement to an increased rating for atrial fibrillation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. The Veteran is in receipt of a 10 percent disability rating for the period prior to November 24, 2020 and a 30 percent disability rating beginning on November 24, 2020, for atrial fibrillation. The Veteran’s disability was initially rated as paroxysmal atrial fibrillation pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7010. In a January 2021 rating decision, the RO recharacterized the Veteran’s condition as constant atrial fibrillation and rated his disability pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7011. Under Diagnostic Code 7010, governing the evaluation of supraventricular ventilation, a 30 percent rating is the highest rating available and it is assigned for permanent atrial fibrillation or one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. 38 C.F.R. § 4.104, Diagnostic Code 7010. The Board notes that there is no evidence of permanent atrial fibrillation or documented fibrillation by ECG or Holter monitor, a 30 percent rating is not warranted under this Diagnostic Code. Further, as the Veteran is being assigned a 30 percent rating under Diagnostic Code 7011, this Diagnostic Code is not applicable and will not be discussed further. Under Diagnostic Code 7011, a 10 percent rating is assigned when the disability results in a workload of greater than 7 METs (metabolic equivalents), but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required. A higher 30 percent rating is assigned when the disability results in a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. A rating of 60 percent is assigned when a Veteran has had more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular (LV) dysfunction with an ejection fraction (EF) of 30 to 50 percent. A rating of 100 percent is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an EF of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7011. Turning to the evidence, the Veteran was provided a VA examination in February 2010. At this time, he reported that he has had atrial fibrillation episodes every two to three weeks with dizziness and shortness of breath since being diagnosed. He indicated that the attacks lasted approximately one hour and reverted spontaneously. He was not on medication at this time. On examination, the Veteran had a normal heart rhythm. The examiner noted that the Veteran did not have a history of myocardial infarction or congestive heart failure. An echocardiogram included findings suggestive of diastolic dysfunction due to impaired relaxation pattern. The Veteran’s left ventricular ejection fraction was normal at 55 to 65 percent. However, a stress test showed a workload of 7 metabolic equivalents (METs). The examiner concluded that the Veteran had paroxysmal atrial fibrillation with periods of spontaneous atrial fibrillation followed by periods of normal rhythm. A new VA examination was provided in November 2020. Continuous medication was required at this time. On examination, the Veteran had a normal heart rhythm. The examiner noted that the Veteran did not have a history of myocardial infarction or congestive heart failure. An echocardiogram documented normal left ventricular ejection fraction, but it showed evidence of cardiac hypertrophy. Additionally, a stress test showed a workload between 5 and 7 METs with dyspnea. The examiner concluded that the Veteran had constant atrial fibrillation and that there had been no change in his diagnosis of atrial fibrillation. Having reviewed the evidence of record, the Board finds that a rating of 30 percent for the entire period on appeal is warranted. The February 2010 VA documented a workload of 7 METs and the Veteran reported to the examiner that he has had dizziness and shortness of breath (dyspnea) with atrial fibrillation since being diagnosed. The Board notes that the Veteran is competent to report symptoms and observable events within the realm of his personal knowledge such as dizziness and shortness of breath. Layno v. Brown, 6 Vet. App. 465, 470-471 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, the November 2020 VA examination documented a workload between 5 and 7 METs with dyspnea. Thus, the Veteran satisfies the criteria for a 30 percent disability rating under Diagnostic Code 7011 for the entire appeal period. However, an evaluation greater that 30 percent is not warranted for any portion of the appeal period. The record does not demonstrate that the Veteran has any history of myocardial infarction, chronic congestive heart failure, or acute congestive heart failure. Additionally, the record does not demonstrate that the Veteran had a workload of 5 METs or less or left ventricular dysfunction with an ejection fraction below 50 percent at any time during the appeal period. In sum, the Board finds that a disability rating of 30 percent, but no higher, is warranted for the entire appeal period. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Beech, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.