Citation Nr: 21015494 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-35 159 DATE: March 17, 2021 ORDER Entitlement to a higher rating of 40 percent (reassigned from Diagnostic Code 7018-7011 to Diagnostic Code 8999-8911) for neurogenic cardiac syncope with cardioinhibitory and vasodepressor components effective April 13, 2010 is granted. FINDINGS OF FACT 1. The Veteran’s neurogenic cardiac syncope with cardioinhibitory and vasodepressor components manifests a workload of greater than 5 METs but not greater than 7 METS. 2. The Veteran’s disability is akin to minor seizures with frequent near syncopal episodes and intermittent syncope episodes approximately 2.5 to 7.5 times per week. CONCLUSION OF LAW The criteria for entitlement to a higher rating of 40 percent, but no higher, for neurogenic cardiac syncope with cardioinhibitory and vasodepressor components effective April 13, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, 4.125, Diagnostic Codes 7011, 8911. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1989 to August 1994. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an August 2010 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2019. In May 2020, the Board remanded the issues for further development. The Board notes that the AOJ substantially completed all development ordered by the May 2020 remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 2 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As instructed, the Veteran was also provided with a VA Form 21-4142 and requested to provide releases for outstanding private treatment records. No response was received from the Veteran in regard to these records. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). VA has fulfilled its duty to assist by obtaining all identified and available evidence and adjudication may proceed based upon the information of record. 1. Entitlement to an evaluation in excess of 20 percent for neurogenic cardiac syncope with cardioinhibitory and vasodepressor components prior to October 18, 2012, and in excess of 30 percent thereafter The Veteran’s cardiac syncope has been assigned a 20 percent rating under DC 8999-8911, as analogous to epilepsy, prior to October 18, 2012. From October 18, 2012, the Veteran’s cardiac syncope is assigned a 30 percent rating under DC 7018-7011. 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. The Board attempts to determine the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to a veteran’s 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. A Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the issue involves the assignment of a disability rating following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered, and separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 -77 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the DC 8999-8911 hyphenated diagnostic code indicates that the Veteran’s cardiac syncope is rated, by analogy, under the criteria for epilepsy, petit mal (Diagnostic Code 8911). Also, the DC 7918-7011 hyphenated diagnostic code follows the rating criteria of DC 7018 (implantable pacemakers) which states after more than two months following hospital admission for implantation or reimplantation, evaluate as supraventricular arrhythmias (DC 7010), ventricular arrhythmias (DC 7011), or atrioventricular block (DC 7015). DC 7011 indicates that the Veteran’s heart disability is rated, by analogy, under the criteria for ventricular arrhythmias. Pursuant to Diagnostic Code 8911 General Rating Formula for Major and Minor Epileptic Seizures (General Rating Formula), a 20 percent disability rating is warranted when at least one major seizure occurred in the last two years; or at least two minor seizures occurred in the last six months. Where at least one major seizure occurred in the last six months or occurred two times in the last year; or there was an average of at least five to eight minor seizures weekly a 40 percent disability rating is warranted. A 60 percent disability rating is warranted where there is an average of at least one major seizure in four months over the last year; or nine to ten minor seizures occurred per week. An 80 percent disability rating is assigned where there is at least one major seizure in three months over the last year; or more than ten minor seizures weekly. A 100 percent disability rating is warranted where there is an average of at least one major seizure per month over the last year. Additionally, a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (1). A minor seizure consists of brief interruption of consciousness or conscious control associated with staring or rhythmic blinking of the eyes, or nodding of the head, or sudden jerking movements of the arms, trunk, or head, or sudden loss of postural control. 38 C.F.R. § 4.124a, Diagnostic Code 8911, Note (2). Petit mal epilepsy is rated as minor seizures. Under Diagnostic Code 7011, a 10 percent rating is warranted when ischemic heart disease results in a workload of greater than 7 METs, but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; when continuous medication is required. A 30 percent rating is warranted where ischemic heart disease 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 dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is assigned when a Veteran 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 dysfunction with an ejection fraction 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 ejection fraction of less than 30 percent. Diagnostic Code 7011 also provides a 100 percent rating for an indefinite period from state of hospital admission for initial evaluation and medical therapy for a sustained ventricular arrhythmia, or; for indefinite period from date of hospital admission for ventricular aneurysmectomy, or; with an automatic implantable Cardioverter-Defibrillator (AICD) in place. 38 C.F.R. § 4.104, Diagnostic Code 7011. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. 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). An April 2010 private treatment record notes the Veteran had several episodes of near syncope. In an April 2010 statement, the Veteran’s husband related the Veteran has frequent near syncopal episodes. She is severely limited in what she can do. Her episodes, which include lightheadedness and dizziness, can be caused by heat. The Veteran has to lay down until her blood pressure rises so she can get back up without passing out. The Veteran’s July 2010 private treatment records note she continues to have multiple episodes of near syncope, and no full episodes of syncope. She experienced six to eight episodes of dizziness since her previous visit in April 2010. The Veteran was afforded a VA heart examination in July 2010. The Veteran related she has near-syncopal episodes ten to fifteen times per month, sometimes more if she is in a hot environment. She has more than 200 near-syncopal episodes in a year’s time. She stated that she had three frank syncopal episodes in the past twelve months. The Veteran’s identified trigger mechanisms for her episodes are extreme heat such as walking in hot weather, exposure to the direct sun, and cooking dinner over a hot stove can provoke either lightheadedness followed by frank syncope. There were no issues regarding mitral valve prolapse. The VA examiner stated the Veteran’s activities of daily living are substantially impacted, particularly with ten to fifteen episodes of near syncope per month, which increases to twenty to thirty episodes a month when exposed to a hot environment. The examiner commented that the magnitude with the interference with the activities of daily living is great for the Veteran’s diagnosed neurocardiogenic syncope. The examiner further stated that neurocardiogenic syncope bears no relationship whatsoever to the usual forms of heart disease, to include coronary heart disease, ischemic heart disease, valvular heart disease, hypertension, infiltrative cardiomyopathies, and myocarditis. The Veteran’s METs were estimated 7 without left ventricular hypertrophy. The examiner found that the Veteran’s METs do no way obviate the magnitude of the Veteran’s symptomatology. The Veteran’s co-worker related in August 2010 correspondence that he witnessed the Veteran’s near-syncopal episodes. He related the Veteran ceased talking, looked delirious, and was nonresponsive to questions. The Veteran returned to a normal condition after resting on her bed and sipping water. He also related he witnessed the Veteran become dizzy after bending over to plug in a laptop. She again was unresponsive, and she had to sit on the floor to regain her composure. She was unable to work for about an hour. Private treatment records from November 2010 note the Veteran experienced three to four “near misses” as the Veteran described them. She had one episode of complete loss of consciousness. In September 2011, a private treatment note states the Veteran had two syncope episodes where she had to lie down. There was no loss of consciousness. In May 2012, the Veteran reported she did not have any complete episodes, but was close to complete loss of consciousness. The Veteran was afforded a VA heart examination in October 2012. The examiner noted the Veteran had a minimal mitral prolapse. The interview-based METs test reflected a level greater than 5 METs but not greater than 7 METS. The VA examiner noted that the Veteran has been on various medications. The examiner noted the functional impact of the Veteran’s cardiac syncope is she would need a major understanding by her employer and co-workers as she must occasionally lie down on the floor when she senses the onset of a fall in blood pressure. The Veteran reported that a sudden fall in blood pressure caused two episodes of complete syncope within the past year and three to five near syncopal episodes weekly. A February 2013 private treatment record stated the Veteran had two syncopal episodes in which the Veteran passed out completely. The Veteran was afforded a VA heart examination in October 2017. The examiner noted the Veteran has intermittent sinus tachycardia which resulted in more than four episodes in the past 12 months. The Veteran related she must sit or lie down quickly or she will pass out. Her episodes are triggered by heat, direct sunlight, prolonged standing, diarrhea, and tachycardia. She has ten to fifteen presyncopal episodes per month. The interview-based METs test reflected a level greater than 5 METs but not greater than 7 METS. A VA seizure disorder examination was conducted in February 2018. The Veteran stated she has increasing syncopal episodes and has an episode a week. The Veteran has changed jobs three times in the past four years due to having to take multiple days off of work. The examiner noted the functional impact is two to four weeks of lost time at work in the previous 12 months. The examiner noted the Veteran has no type of seizure activity. An April 2018 addendum opinion stated the Veteran’s frequency of syncope is one time per week, noted as a major episode. She has no episodes of minor syncope. An addendum was also provided in July 2018. At the February 2019 Board hearing, the Veteran related she passes out frequently, making it difficult to do her job, travel, and in daily life. She passes out due to heat, cramping diarrhea, pain, and if she stands up too quickly. In a July 2020 statement, the Veteran maintained that she experienced some symptoms 5 times a week, all three symptoms more than 8 times a month, and “a full blackout at least 2 times a month.” As a preliminary matter, the Board finds the evidence does not support a finding in excess of 30 percent under DC 7011. Upon review of the record (to include the Veteran’s contemporaneous VA outpatient treatment records), the Board finds that there is no evidence of a workload greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of left ventricular dysfunction with an ejection fraction (LVEF) of 30 to 50 percent. In this regard, the aforementioned VA examination reports demonstrate METs of 5-7, not 3-5 METs, and there is no reported LVEF of 30 to 50 percent. Thus, the Veteran’s heart disability does not warrant the next higher 60 percent evaluation under Diagnostic Code 7011. Importantly, the Board finds that the Veteran’s neurogenic cardiac syncope with cardioinhibitory and vasodepressor components should be evaluated under DC 8911 for the entire appeal period because the "anatomical localization" of, "functions affected" by, and "symptomatology" of the Veteran’s disability is analogous to an individual who suffers from minor seizures. 38 C.F.R. § 4.20. As noted above, a major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness, while a minor seizure consists of brief interruption of consciousness or conscious control associated with staring or rhythmic blinking of the eyes, or nodding of the head, or sudden jerking movements of the arms, trunk, or head, or sudden loss of postural control. The Veteran’s disability is akin to minor seizures because her disability is primarily manifested by symptoms of lightheadedness, dizziness, or passing out. The Veteran suffers from frequent near syncopal episodes and intermittent syncope episodes approximately 10 to 15 times per month which increases to 20 to 30 episodes a month when exposed to a hot environment. This approximates 2.5 to 7.5 times per week. Resolving reasonable doubt in favor of the Veteran, the Board finds the disability more nearly approximates the criteria for a 40 percent rating (an average of at least five to eight minor seizures weekly). Accordingly, a higher rating of 40 percent, but no higher, is warranted for the entire appeal period. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.