BVA9508010 DOCKET NO. 91-16 228 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased evaluation for rheumatic valvulitis with status post aortic valve replacement, for accrued benefits purposes. 2. Entitlement to service connection for diabetes mellitus as secondary to service connected rheumatic valvulitis with status post aortic valve replacement, for accrued benefits purposes. 3. Entitlement to service connection for hypertension as secondary to service connected rheumatic valvulitis with status post aortic valve replacement, for accrued benefits purposes. 4. Entitlement to a total disability rating based on individual unemployability due to service connected disability, for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Carolyn Wiggins, Associate Counsel INTRODUCTION The veteran served on active duty from August 1946 until November 1950. This appeal is from rating decisions which denied the veteran an increased evaluation for rheumatic valvulitis with status post aortic valve replacement, service connection for diabetes mellitus and hypertension as secondary to service connected rheumatic valvulitis with status post aortic valve replacement, and a total disability rating based on individual unemployability due to service connected disability. The veteran had perfected his appeal to the Board on the increased rating issue. The Board had remanded this issue in June 1991. In an October 1992 remand, the Board expanded the issues on appeal to include the secondary service connection issues and the individual unemployability issue. The veteran died in June 1993, while the case was in remand status. The appellant filed a claim for dependency and indemnity compensation and accrued benefits in July 1993. A January 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California awarded service connection for the cause of the veteran's death and denied the appellant's claim for accrued benefits as to the above issues. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that an increased evaluation for rheumatic valvulitis with status post aortic valve replacement was appropriate in that the various manifestations of that disability were more severe than currently evaluated and productive of a greater degree of impairment than is reflected by the evaluations currently assigned. The appellant contends that the veteran's service connected valvular heart disease caused him to develop hypertension and diabetes mellitus. She asserts that the veteran's service connected disability was of such severity as to preclude substantially gainful employment. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a 60 percent evaluation for rheumatic valvulitis with status post aortic valve replacement, for accrued benefits purposes; that the preponderance of the evidence is against the claim for a total disability rating based on individual unemployability due to service connected disability, for accrued benefits purposes; and that the evidence is not sufficient to justify a belief by a fair and impartial individual that the claims for service connection for hypertension and diabetes mellitus, as secondary to service connected rheumatic valvulitis with status post aortic valve replacement, are well grounded. FINDINGS OF FACT 1. Service connection was in effect for rheumatic valvulitis with status post aortic valve replacement, heretofore rated as 30 percent disabling, and currently rated as 60 percent disabling. 2. The veteran's rheumatic valvulitis with status post aortic valve replacement was manifested by an enlarged heart, elevation of some systolic blood pressures, grade II/III early short systolic eject murmur at the base of the left sternal border and mild dyspnea on exertion. 3. The claim was not accompanied by competent evidence showing that hypertension is causally related to the veteran's service connected rheumatic valvulitis with status post aortic valve replacement. 4. The claim was not accompanied by competent evidence showing that diabetes mellitus is causally related to the veteran's service connected rheumatic valvulitis with status post aortic valve replacement. 5. The veteran's service connected disability was not of sufficient severity as would have prevented him from engaging in some form of substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. An evaluation of 60 percent for rheumatic valvulitis with status post aortic valve replacement is warranted, for purposes of accrued benefits. 38 U.S.C.A. §§ 1155, 5107(b), 5121 (West 1991); 38 C.F.R. § 3.1000 and Part 4, Diagnostic code 7000, 7016 (1994). 2. The appellant has not submitted a well grounded claim for service connection for hypertension, as secondary to service connected rheumatic valvulitis, with status post aortic valve replacement, for purposes of accrued benefits. 38 U.S.C.A. §§ 5107, 5121 (West 1991); 38 C.F.R. § 3.1000 (1994). 3. The appellant has not submitted a well grounded claim for service connection for diabetes mellitus, as secondary to service connected rheumatic valvulitis with status post aortic valve replacement, for purposes of accrued benefits. 38 U.S.C.A. §§ 5107, 5121 (West 1991); 38 C.F.R. § 3.1000 (1994). 4. The veteran's service connected disability did not render him individually unemployable for the purposes of accrued benefits. 38 U.S.C.A. §§ 1155, 5107(b), 5121 (West 1991); 38 C.F.R. §§ 3.102, 3.341, 4.16, 3.1000 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claims for an increased evaluation for rheumatic valvulitis with status post aortic valve replacement, for accrued benefits purposes and a total disability rating based on individual unemployability due to service connected disability, for accrued benefits purposes are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). She has presented claims which are plausible. A decision for the payment of accrued benefits is predicated on evidence on file at the time of the veteran's death. 38 U.S.C.A. § 5121 (West 1991). In this case, at the time of the veteran's death, his service medical records were on file, all pertinent post service VA records which could be obtained had been obtained. 38 C.F.R. § 3.1000 (1994). The Board is satisfied that all relevant facts have been properly developed. No further assistance to the appellant is required in order to comply with the duty to assist her mandated by 38 U.S.C.A. § 5107(a) (West 1991). Periodic monetary benefits authorized under the laws administered by the VA, to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at date of death, and due and unpaid for a period not to exceed 1 year prior to the last date of entitlement as provided in 38 C.F.R. § 3.500(g) (1994), will be paid upon the death of a veteran to the living person first listed as follows; his or her spouse, his or her children, his or her dependent parents or the surviving parent. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.1000(a) (1994). I. INCREASED EVALUATION Disability evaluations, in general, are intended to compensate for the average impairment of earning capacity resulting from service-connected disability. They are primarily determined by comparing objective clinical findings with the criteria set forth in the rating schedule. 38 U.S.C.A. §§ 1155 (West 1991); 38 C.F.R. Part 4 (1994). . The VA has the duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet.App 589 (1991). These regulations include 38 C.F.R. § 4.1, which requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory, and prognostic data required for ordinary medical classification, a description of the effects of the disability upon the person's ordinary activity. A 100 percent evaluation is warranted for inactive rheumatic heart disease where there is demonstrated definite enlargement of the heart, clinically confirmed by roentgenogram; dyspnea on slight exertion; rales, pretibial pitting at the end of the day or other definite signs of beginning congestive failure precluding more than sedentary employment. A 60 percent evaluation requires that there be definite enlargement of the heart; severe dyspnea on exertion, elevation of systolic blood pressure, or other such arrhythmias as paroxysmal auricular fibrillation or flutter or paroxysmal tachycardia precluding more than light manual labor. A 30 percent evaluation is warranted from the termination of an established service episode of rheumatic fever, or its subsequent recurrence, with cardiac manifestations, during the episode or recurrence, for 3 years or where diastolic murmur with characteristic EKG manifestations or with a definitely enlarged heart. 38 C.F.R. § 4.101 and Part 4, Diagnostic Code 7000 (1994). A 100 percent evaluation is warranted for heart valve replacement, 1 year following the implantation of a prosthetic valve. Thereafter it should be rated as rheumatic heart disease with a minimum rating of 30 percent. 38 C.F.R. § 4.101 and Part 4, Diagnostic Code 7016 (1994). A 60 percent evaluation is warranted for complete auriculoventricular block with Stokes-Adams attacks several times a year despite the use of medication or management of the heart block by pacemaker. A 30 percent evaluation is warranted without syncope or minimum rating when pacemaker has been inserted. 38 C.F.R. § 4.101 and Part 4, Diagnostic Code 7015 (1994). 38 C.F.R. § 3.102, 4.7 (1994), provides that when a reasonable doubt arises regarding the degree of disability such doubt should be resolved in favor of the claimant. Service medical records reveal that the veteran was diagnosed with inactive rheumatic valvulitis with a deformity of the aortic valve in June 1950. His heart was moderately enlarged to the left. There was a systolic thrill over the apex. There was a short, grade I systolic murmur at the apex. A grade 4, rough systolic murmur was present over the aortic area, transmitted to the neck vessels. A soft, blowing grade I diastolic murmur was present over the aortic area, transmitted to the left parasternal area. A medical board recommended his separation from the service. In March 1951 a rating decision granted service connection and assigned a 30 percent evaluation. In July 1983 a private hospital summary reveals that the veteran was admitted with organic heart disease with aortic stenosis. He underwent a right and left heart catheterization and selective coronary angiography. He had an aortic valve replacement and the insertion of an AV sequential pacemaker following postoperative complete heart block. A letter from the veteran's private physician dated in November 1985, stated that due to his progressive heart dysfunction his heart became enlarged and remained so following surgery. A March 1988 statement from his private physician noted he had been treated for atrial and ventricular arrhythmias. In March 1989, a private medical record recorded the replacement of his pacemaker generator. A February 1990 letter from his private physician noted the he experienced chronic fatigue and shortness of breath with activity. Private progress records in 1990-1991 showed systolic blood pressures ranging from 150 to 126. There was dyspnea on exertion with stairs. An electrocardiogram showed a normal pacemaker. At his personal hearing in November 1990 the veteran said he had difficulty going up to the second story of his home. If he tried to go out and take a walk he had to stop after half a block and get his breath and then continue. It took him approximately 45 minutes to walk around the block. His medications included Minipress, Dyazide, Quinidine, Coumadin and Digoxin. A VA examination in August 1991 revealed regular heart rhythm with normal sounds of a prosthetic aortic valve. There was a grade II/III early short systolic ejection murmur at the base and the left sternal border. There was no diastolic murmur. No S3, third heart sound or ventricular gallop, or S4 fourth heart sound or atrial gallop was heard. His pulse was 62 and his blood pressure was 152/84. A chest x-ray revealed an enlarged cardiovascular silhouette. There was a two strut aortic valve in place as well as a pacemaker. The examiner's impression was no acute disease. In the section for remarks he noted that the veteran was able to slowly walk about 1 mile which was frequently limited by mild dyspnea on exertion. There was no typical chest pain. There had been no recent dizziness or symptoms of congestive heart failure. An echocardiographic report noted measurements of the LV-diastole as 73, LV-systole as 52, LV septum as 13, LV post wall as 13, aortic root as 34, left atrium as 73, EPSS as 17 and LV endocardial shortening as 28. His left atrium was found to be greatly enlarged, his left ventricle was greatly enlarged, his right atrium was enlarged and his right ventricle was enlarged. The examiner commented that there was a severely dilated left ventriclar systolic function with enlargement. There was mild concentric left ventricular hypertrophy. There was a regional wall motion abnormality. The mitral valve was thickened with moderate mitral regurgitation. VA records of visits in 1991 and 1992 showed systolic blood pressures ranging from 169 to 130. There were no signs of congestive heart failure. There was occasional dyspnea on exertion.. The evidence in the claims folder at the date of the veteran's death indicates he was able to walk slowly with mild shortness of breath and frequent stops for one mile. This does not equate to severe dyspnea on exertion. He also had a history of cardiac arrhythmias, but, of course, none since pacemaker implantation. On the other hand, the heart was definitely enlarged and systolic blood pressures were elevated on occasion. In addition, a reasonable interpretation of the medical record is that the veteran's fatigue and shortness of breath were largely due to the service connected heart disorder, and, as such, would have precluded more than light manual labor. On balance, the evidence is in relative equipoise with respect to entitlement to a 60 percent rating under Diagnostic Code 7000. With application of the benefit of the doubt rule, we conclude that a 60 percent rating is warranted. The record did not show the attacks of syncope or other findings which would have established entitlement to a still higher rating under the applicable criteria, to include the extraschedular criteria. II. SECONDARY SERVICE CONNECTION The threshold question to be answered at the outset of the analysis of any claim is whether the appellant's claims are well grounded: that is, whether they are plausible, meritorious on their own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a)(1993). An appellant has, by statute, the duty to submit evidence that a claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the appellant is not met. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the appellant must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible. King v. Brown, 5 Vet.App. 19 (1993). The evidence before the Board includes a VA examination and letters from the veteran's private physicians that note hypertension and diabetes mellitus. It is clear from the evidence of record that the veteran developed both hypertension and diabetes mellitus many years after service. The current claim is limited to service connection on a secondary basis. For that reason the Board has limited its review of the issue to secondary service connection. There is no credible evidence in the claims folder which connects the veteran's development of hypertension and diabetes mellitus to his service connected disorder. The appellant has failed to provide any clinical evidence of a relationship between his service connected rheumatic valvulitis and either hypertension or diabetes mellitus. There is no objective evidence of medical causality, and without such evidence the claim is not well grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). The appellant lacks the medical expertise to enter a judgment regarding a medical relationship between the claimed disorders and the veteran's service connected disorder. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91 (1993). The veteran, in his May 1989 statement, had claimed that doctors had indicated that diabetes mellitus was the result of the heart condition, but a statement as to what an individual was told by a doctor is insufficient in a case where expert opinion is required. See Espiritu, 2 Vet. App. at 495; see also Warren v. Brown, 6 Vet. App. 4 (1993). When there is no medical evidence of the claimed disorders having a causal relationship to a service connected disorder, claims for secondary service connection are not well grounded. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). III. TOTAL DISABILITY RATING BASED ON INDIVIDUAL UNEMPLOYABILITY DUE TO SERVICE CONNECTED DISABILITY Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities: Provided, that if there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1994). According to the veteran's Application for Increased Compensation Based on Unemployability, dated in December 1992, he had completed three years of college. He was last employment as an Area Sales Manager. He retired in 1989. He was awarded Social Security Disability Benefits, effective as of October 1989. The veteran's service connected disability was rheumatic valvulitis with status post aortic valve replacement, evaluated as 60 percent disabling. His non-service connected disabilities included hypertension, diabetes mellitus, cardiovascular disease and chronic obstructive pulmonary disease. The veteran met the schedular criteria for a total rating outlined above, as he had one disability rated as 60 percent disabling. A total rating may be provided if the veteran fails to meet the schedular requirements if he presents a disability picture which places him in a different position than other veterans with the same percentage of disability. In reaching its determination in this case the Board has followed the analysis of the Court of Veterans Appeals in Van Hoose v. Brown, 4 Vet.App. 361 (1993). The Court held that for a veteran to prevail in a claim for individual unemployability benefits, it is necessary that the record reflect some factor which takes his case outside the norm. 38 C.F.R. §§ 4.1, 4.15 (1993). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high schedular rating which is assigned is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether or not the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither non-service-connected disabilities nor advancing age may be considered. 38 C.F.R. § 3.341(a) (1993); Hersey v. Derwinski, 2 Vet.App 91 (1992). The veteran worked for many years as a sales manager. He testified at his personal hearing that his job involved significant traveling and lifting heavy cases. He submitted letters from his private physicians stating that he was no longer able to work due to the combination of cardiovascular disease and diabetes. The rating assigned for the service connected heart disorder contemplates that more than light manual labor is precluded. However, the veteran's education (three years of college) and his work experience (as a manager) qualify him for relatively sedentary work. Inasmuch as the service connected heart disorder did not preclude relatively sedentary work, the Board does not find that he was individually unemployable solely due to his service connected rheumatic valvulitis with status post aortic valve replacement. In so concluding, we recognize that the heart disorder may have significantly interfered with the performance of his last job. Nonetheless, the record did not show that he was prevented from other employment compatible with his education and work experience by reason of service connected disability. ORDER A 60 percent evaluation for rheumatic valvulitis with status post aortic valve replacement, for accrued benefits purposes, is granted, subject to the criteria which govern the award of monetary benefits.. The appeal for service connection for hypertension as secondary to service connected rheumatic valvulitis with status post aortic valve replacement, for accrued benefits purposes, is dismissed. The appeal for service connection for diabetes mellitus as secondary to service connected rheumatic valvulitis with status post aortic valve replacement, for accrued benefits purposes, is dismissed. A total disability rating based on individual unemployability due to service-connected disability, for accrued benefits purposes, is denied. (CONTINUED ON NEXT PAGE) NANCY I. PHILLIPS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.