Citation Nr: 22014183 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-18 060 DATE: March 11, 2022 ORDER Entitlement to an initial 100 percent rating for service-connected atrial flutter and atrial fibrillation, effective January 18, 2014, but not earlier, is granted. FINDING OF FACT Throughout the period on appeal, the probative evidence of record demonstrates that the Veteran's atrial flutter and atrial fibrillation have been productive of symptomatology warranting a 100 percent rating. CONCLUSION OF LAW The criteria for the assignment of a 100 percent rating for service-connected atrial flutter and atrial fibrillation, throughout the period on appeal, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.20. 4.100, 4.104, Diagnostic Codes 7005, 7010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1955 to September 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was most recently before the Board in June 2020, at which time the Board remanded the appeal for consideration of a rating in excess of 30 percent for atrial flutter and atrial fibrillation on an extraschedular basis, directing the Agency of Original Jurisdiction (AOJ) to refer the claim to the Director of Compensation Service for an administrative decision on the issue of whether the Veteran was entitled a higher rating on an extraschedular basis. The Director of Compensation Service issued an advisory opinion in November 2021, advising denial of entitlement to a rating greater than 30 percent for atrial flutter and atrial fibrillation on an extraschedular basis. The RO issued a supplemental statement of the case in December 2021. The appeal has now returned to the Board for further appellate review. This claim has been advanced on the docket pursuant to 38 C.F.R. § 20.900. The Veteran contends that the current 30 percent rating does not appropriately contemplate the severity of the disability and the daily impact it has had on his life. Therefore, he maintains that he is entitled to an increased rating for his service-connected atrial flutter and atrial fibrillation. Entitlement to an initial rating in excess of 30 percent for atrial flutter and atrial fibrillation VA's schedule of disability ratings is based on average impairment in earning capacity in civil occupations from specific injuries or combinations of injuries. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a). The percentage ratings in the rating schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from disabilities and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule generally provides the degrees of disability adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran's atrial flutter and atrial fibrillation are currently at 30 percent under Diagnostic Code 7010. Under Diagnostic Code 7010, used for rating supraventricular tachycardia, a 30 percent rating is the maximum available schedular rating. It contemplates paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor. However, the rating schedule provides a general point of reference for assigning ratings for heart disabilities. The Board finds that the Veteran's atrial flutter and atrial fibrillation can be rated in accordance with the criteria set forth in Diagnostic Code 7005, which pertains to coronary artery disease. 38 C.F.R. § 4.104, Diagnostic Code 7005, 7010. Rating under Diagnostic Code 7005 is primarily based on the level of metabolic equivalents (METs) at which dyspnea, fatigue, angina, dizziness, or syncope develops. 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 a METs level is required for rating, but a laboratory determination by exercise testing cannot be done for medical reasons, an estimate 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) may be used. 38 C.F.R. § 4.104, Note (2). A 30 percent rating is warranted for a METS level of greater than five, but not greater than 7. A 60 percent rating is warranted for a METs level greater than 3 but not greater than 5. A 100 percent rating is warranted for a METs level of 3 or less. 38 C.F.R. § 4.104, Diagnostic Code 7005. The Veteran's current rating under Diagnostic Code 7010 does not provide for consideration of the Veteran's METs level. While the disability for which service connection has been established has been characterized as atrial flutter and fibrillation, for which there is a Diagnostic Code, the Board finds that the heart symptomatology is beyond that contemplated by supraventricular tachycardia under Diagnostic Code 7010 and the Disability can be rated using Diagnostic Code 7005 to capture the complete symptomatology caused by the disability. The Board finds that the disability can be rated by analogy to coronary artery disease because the manifestations of the actual heart disability are similar. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. While atrial fibrillation and flutter are included within a listed condition, under the category of supraventricular tachycardia, the Board finds that the Veteran's disability encompasses additional symptomatology and is best rated by analogy using Diagnostic Code 7005. The Board also acknowledges that the rating criteria for the cardiovascular system was changed, effective November 14, 2021. However, the change in the criteria does not provide the Veteran with an alternative Diagnostic Code under which to consider an increased rating for atrial flutter and atrial fibrillation. The Board remanded the appeal in June 2020, for extraschedular consideration by the Director of Compensation Service. The Director of Compensation Service recommended denial of a rating in excess of 30 percent for atrial flutter and atrial fibrillation on an extraschedular basis, the Board is not bound by that advisory opinion. The Veteran was provided VA heart examinations in April 2015, March 2017, July 2021, and October 2021. Addendum opinions were provided in August 2021 and December 2021. The April 2015 and March 2017 examiners determined that the Veteran's METs level was 3 to 5 METs. The evaluation of cardiovascular disabilities generally requires METs testing, unless medically-contraindicated or similar circumstances apply. 38 C.F.R. § 4.104. Exercise testing of a claimant's METs level is required unless that testing cannot be performed for medical reasons. The Veteran did not undergo exercise stress tests at the April 2015 and March 2017 VA heart examinations to determine the METs levels. Moreover, the April 2015 and March 2017 VA examiners did not provide explanations for why exercise stress tests were not performed. Therefore, the April 2015 and March 2017 examinations are inadequate for rating purposes, and are, therefore, not probative evidence to properly assess the severity of the Veteran's atrial flutter and atrial fibrillation and other heart symptoms. The July 2021 examiner determined that the Veteran had a METs level of 1 to 3, causing dyspnea and fatigue, based solely upon the heart condition. Although no exercise stress test was provided, the examiner indicated that there was significant risk involved in performing such a test, which was clear based upon the severity of the heart disability. It was noted that the Veteran became short of breath and fatigued very easily. He became short of breath with showering, dressing, walking out to the mailbox (about 50 feet), with most activity around the house, and he felt tired and short of breath most of the time. The examiner indicated that the Veteran underwent atrial ablation in 2016, and also complained of episodes of bradycardia. An April 2021 echocardiogram noted mild right atrial enlargement and moderate left atrial enlargement, with no enlargement of the ventricles. An August 2021 addendum opinion, by a different examiner, supported the findings of the July 2021 examiner. The addendum opinion stated that the Veteran's heart condition caused a METs level of 1 to 3, and that any exertion would trigger atrial fibrillation making the heart beat fast, causing shortness of breath, fatigue, and tiredness. An October 2021 examiner determined that the Veteran had a METs level of 1 to 3, causing dyspnea, fatigue, and angina, based solely upon the heart disability. The October 2021 examiner also did not perform an exercise stress test, but noted that there was significant risk in performing such a test. It was also indicated, contradicting the first assessment, that the Veteran had an overall METs of 3 to 5. A December 2021 addendum opinion indicated that the METs due to the heart versus the overall METs could not be separated. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Resolving all reasonable doubt in favor of the Veteran, the Board finds that the probative evidence of record, to include the stated findings of the July 2021 VA heart examination, the August 2021 addendum opinion, and the October 2021 VA heart examination, the approximate balance of the evidence shows that the Veteran has had a METs level of 1 to 3 throughout the period on appeal due solely to his heart disability. Under Diagnostic Code 7005 a 100 percent rating is warranted for a METs level of 3 or less for the heart disability of coronary artery disease. The METs level is considered under the criteria for other heart disabilities in the rating schedule as well, but the METs level is not considered by the assigned 30 percent rating under Diagnostic Code 7010. A METs level of 1 to 3 shows very limited functional ability, such that activities equivalent to eating, dressing, taking a shower, and slow walking at 2 miles per hour for one to two blocks would cause symptoms of dyspnea, fatigue and angina. That symptomology is consistent with the Veteran's description of significant symptoms with exertion of any kind and demonstrates that the Veteran's atrial flutter and atrial fibrillation would affect his earning capacity to a greater degree than that contemplated under Diagnostic Code 7010 because of other limitations due to the heart disability. Accordingly, resolving reasonable doubt in favor of the Veteran, entitlement to an initial 100 percent rating for service-connected atrial flutter and atrial fibrillation, rated by analogy using Diagnostic Code 7005 because of the additional heart disability symptoms and findings in addition to atrial fibrillation, effective January 18, 2014, is granted. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.