Citation Nr: 21028530 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 11-06 314 DATE: May 11, 2021 ORDER An initial 30 percent rating, and no higher, for recurrent paroxysmal atrial fibrillation, status post ablation is granted effective December 30, 2009. REMANDED Entitlement to an initial rating in excess of 10 percent prior to January 9, 2017, and in excess of 20 percent thereafter for service-connected plantar fasciitis of the right foot is remanded. FINDING OF FACT Throughout the appeal period, the Veteran's recurrent paroxysmal atrial fibrillation has more nearly approximated more than four episodes per year, documented by electrocardiogram (ECG) or Holter monitor. CONCLUSION OF LAW The criteria for an initial 30 percent disability rating, and no higher, for recurrent paroxysmal atrial fibrillation are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2000 to December 2009. These matters come on appeal before the Board of Veterans' Appeals (Board) from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the RO awarded a 10 percent rating for plantar fascitis of the right foot effective May 6, 2015. In July 2017, the RO granted an earlier effective date of December 30, 2009, for the 10 percent evaluation and assigned a 20 percent disability rating from January 9, 2017. As less than the maximum benefit available was awarded, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at an August 2012 video conference hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of that hearing has been associated with the claims file. In February 2021, the Veteran was afforded the opportunity for a new hearing before the Board but did not respond within 30 days of the date of the letter, and so is presumed to not desire an additional hearing. The appeal was remanded in January 2015, November 2016, January 2018, and July 2020 for further development. This matter has returned to the Board for further appellate review. Increased Ratings Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial disability rating in excess of 10 percent for service-connected recurrent paroxysmal atrial fibrillation, status post ablation. The Veteran is seeking a higher disability rating for his service-connected recurrent paroxysmal atrial fibrillation. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating. The Board notes the Veteran's recurrent paroxysmal atrial fibrillation is rated as 10 percent disabling, effective December 30, 2009, under 38 C.F.R. § 4.104, Diagnostic Code 7010 for atrial fibrillation. Under Diagnostic Code 7010, a 10 percent rating is assigned for supraventricular arrhythmias manifested by permanent atrial fibrillation (lone atrial fibrillation), or one to four episodes per year of paroxysmal atrial fibrillation, or other supraventricular tachycardia documented by ECG ("electrocardiogram") or Holter monitor. A 30 percent rating is assigned for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than 4 episodes/year documented by ECG or Holter monitor. 38 C.F.R. § 4.104, Diagnostic Code 7010. Affording the Veteran all reasonable doubt, the Board finds that the Veteran's overall disability picture is consistent with constant or near constant atrial fibrillation, supported by rhythm studies, amounting to more than four episodes per year. Thus, the Board finds that the Veteran's atrial fibrillation warrants a 30 percent initial disability rating under Diagnostic Code 7010, and no higher, throughout the duration of the appeal. 38 C.F.R. §§ 4.7, 4.104. In pertinent part, while the Board previously determined that the May 2015 VA examiner incorrectly relied upon the March 2013 ECG findings rather than conduct new tests, the May 2015 VA examiner did find that the Veteran's paroxysmal atrial fibrillation resulted in more than four episodes in the past twelve months based on symptoms alone. Utilizing the March 2013 ECG, the January 2017, June 2017, and September 2018 VA examiners noted the Veteran had more than four intermittent episodes of atrial fibrillation in the past 12 months. The June 2017 VA examiner further indicated the episodes were described as a fluttering sensation at times, though he was unable to confirm with any recent ECG. The September 2018 VA examiner again noted the reports of fluttering sensation but did indicate it had not been documented on Holter in recent years, but that the Veteran would get episodes with any increased activity. On VA examination in November 2019, the examiner determined that the Veteran had intermittent episodes of atrial fibrillation one to four times per year. The Board is aware this was based on symptoms since the examiner indicated the Veteran has not had an ECG since 2009. A November 2019 ECG from the Veteran's visit to Lawrence General Hospital was borderline. On VA examination in September 2020 the examiner noted that the Veteran has daily episodes of palpitations and chest pain, and increased activity caused some lightheadedness. He noted that the Veteran described occasional fluttering feeling lasting 30 to 60 minutes typically and that he possibly had one vasovagal episode 18 months ago. The examiner found that paroxysmal atrial fibrillation resulted in more than four episodes in the past twelve months. The examiner concluded there was no significant change found in comparison to the 2013 ECG. While the evidence delineated above warrants an initial 30 percent rating, a higher rating is not possible under the assigned code, DC 7010, because 30 percent is the maximum rating allowed by this code. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board can point to no other diagnostic code that would provide a basis for the assignment of a rating in excess of 30 percent for the Veteran's recurrent paroxysmal atrial fibrillation. Other diagnostic codes pertaining to disabilities of the heart provide evaluations, in part, on the workload that results in certain symptoms. This workload is expressed in "metabolic equivalent of tasks" or "METs" and is the objective measure of the ratio of the rate at which a person expends energy, relative to the mass of that person while performing specific physical activities. 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). The Veteran does not have congestive heart failure as is contemplated by higher ratings provided under other diagnostic codes. Moreover, while the September 2020 VA examiner noted that a January 2020 echocardiogram contained evidence of cardiac hypertrophy, left ventricular ejection fraction was 65 to 70 percent. The examiner also determined that it was not related to, caused, or aggravated by his recurrent paroxysmal atrial fibrillation. There is no evidence of pericardial adhesions or myocardial infarction. A such higher ratings for other heart disabilities under 38 C.F.R. § 4.104 do not apply. In reaching this decision, the Board considered the doctrine of reasonable doubt. REASONS FOR REMAND As to the issue of entitlement to an initial rating in excess of 10 percent prior to January 9, 2017, and 20 percent thereafter for service-connected plantar fasciitis of the right foot, the Board finds that there has not been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the January 2018 remand, the Board reiterated its November 2016 remand directives, noting that the Veteran's VA examiner had failed to demonstrate the Veteran's right foot range of motion in degrees, as requested in the January 2015 Remand and that passive motion and weight-bearing tests are necessary on examination. Correia v. McDonald, 28 Vet. App. 158 (2016). Despite these instructions, the Veteran's January 2017 and June 2017 examiners failed to provide range of motion findings in degrees. The Board determined that although the June 2017 VA examiner stated, "Passive and active ROM are the same and are included in the initial ROMs above," no such findings were reported. In July 2020, the Board noted that in September 2018 the Veteran underwent a VA examination in response to the January 2018 remand directives. However, the Board found again that the VA examiners failed to provide range of motion findings in degrees as requested. Thus, the matter was remanded for another examination, which was conducted in September 2020. However, the Board finds again that the VA examiners failed to render a joint examination and provide range of motion findings in degrees as requested in the Board's previous remands. Stegall, supa. Moreover, the Board finds recent changes to 38 C.F.R. § 4.71a , effective February 7, 2021, require additional development as to whether plantar fasciitis is more properly rated under the new Diagnostic Code 5269, relating to plantar fasciitis, when compared with Diagnostic Code 5284, relating to foot injuries, or Diagnostic Code 5276, acquired flatfoot, as the Veteran is currently rated under. See 85 Fed. Reg. 76453 (Nov. 30, 2020); see also 86 Fed. Reg. 8142 (Feb. 4, 2021) (changing the new diagnostic code for plantar fasciitis from Diagnostic Code 5285 to Diagnostic Code 5269). The matter is REMANDED for the following action: 1. Schedule the Veteran for VA examination to determine the current severity of his service-connected plantar fasciitis of the right foot. The examiner should conduct all indicated tests and studies, to include range of motion testing where applicable. The joints in question, as well as any paired joint, should be tested in both active and passive motion and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The examiner should describe any pain, weakened movement, excess fatigability, and incoordination present. The examiner should assess the additional functional impairment due to pain, weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the examiner concludes that it is not feasible to do so to any degree of medical certainty without resort to speculation, then the examiner must provide an explanation for such determination. 2. Thereafter, the Veteran's claim must be readjudicated. In readjudicating the claim, the RO must also consider recent changes effective February 7, 2021, to 38 C.F.R. § 4.71a, Diagnostic Code 5269, relating to plantar fasciitis. See 85 Fed. Reg. 76453 (Nov. 30, 2020); see also 86 Fed. Reg. 8142 (Feb. 4, 2021) (changing the new diagnostic code for plantar fasciitis from Diagnostic Code 5285 to Diagnostic Code 5269). If upon completion of the above action, the issue remains denied the matter must be returned to the Board after compliance with appellate procedures. K. L. WALLIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.