Citation Nr: 0007235 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 94-38 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a disability rating in excess of 30 percent for rheumatic heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and appellant's spouse ATTORNEY FOR THE BOARD John Kitlas, Associate Counsel INTRODUCTION The veteran served on active duty from March 1944 to October 1944. Service connection was granted for rheumatic heart disease by a November 1944 rating decision. A 10 percent disability rating was assigned, effective October 28, 1944. This rating was subsequently increased to 30 percent by an October 1950 rating decision, effective September 7, 1950. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which denied the claim. The veteran provided testimony at personal hearings held before the RO in May 1993 and December 1998, as well as before the undersigned Board Member in February 2000. Transcripts of all of these hearings are of record. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). In general, a veteran's claim of increasing severity of a service-connected disability establishes a well-grounded claim for an increased evaluation. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Therefore, the Board finds that the veteran's claim for an increased evaluation for his rheumatic heart disease is well-grounded. Because the claim is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). Here, VA has accorded the veteran several examinations in relation to this claim, obtained medical records pertaining to the instant case, and provided the veteran with the opportunity to present pertinent testimony at several personal hearings. Nevertheless, for the reasons stated below, the Board concludes that additional development is necessary for a full and fair adjudication of the veteran's claim. The veteran's service medical records show that he was treated in April 1944 for rheumatic fever which affected his knees and right elbow, as well as valvular heart disease with mitral insufficiency. He was ultimately discharged from service because of valvular heart disease, mitral insufficiency, manifested by systolic murmur at apex. It was determined that this disability incapacitated the veteran for military service because of inability to endure the rigors of military duties. Service connection was subsequently granted for the veteran's heart disorder by a November 1944 rating decision. A 10 percent disability rating was assigned, effective October 28, 1944. This rating was subsequently increased to 30 percent by an October 1950 rating decision, effective September 7, 1950. It is noted that the 30 percent rating for the veteran's heart disorder was subsequently confirmed and continued by several subsequent rating decisions, including decisions issued in April 1987 and June 1989. The veteran was informed of these decisions, and did not appeal. The veteran's current increased rating claim was received by the RO in October 1991. VA medical records were subsequently added to the file that cover a period from October 1990 to February 1991, and the veteran underwent a VA medical examination in November 1991. Thereafter, the RO confirmed and continued the 30 percent disability rating in a December 1991 rating decision. Following the December 1991 rating decision, additional VA medical treatment records were added to the file for the period of November to December 1991. Additionally, the veteran underwent a new VA medical examination in December 1991. Thereafter, the RO once again confirmed and continued the 30 percent disability rating for the veteran's rheumatic heart disease in an April 1992 rating decision. The veteran's Notice of Disagreement was subsequently received in December 1992. A Statement of the Case was issued in January 1993, and the veteran's Substantive Appeal was received in February 1993. The veteran's rheumatic heart disease is evaluated pursuant to the criteria found at 38 C.F.R. § 4.104, Diagnostic Code 7000. During the pendency of this appeal, the criteria for evaluating cardiovascular disabilities were changed and the new regulations became effective on January 12, 1998. See 62 Fed. Reg. 65207 (1997). When a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). Accordingly, the Board will consider whether the veteran is entitled to a disability rating in excess of 30 percent for his rheumatic heart disease under both the old and new criteria. Under the "old" criteria, valvular heart disease was rated at 10 percent with identifiable valvular lesion, slight, if any dyspnea, the heart not enlarged; following established active rheumatic heart disease. A 30 percent evaluation required from the termination of an established service episode of rheumatic fever, or its subsequent recurrence, with cardiac manifestations, during the episode or recurrence, for three years, or diastolic murmur with characteristic EKG manifestations or definitely enlarged heart. A 60 percent evaluation was warranted when the heart was definitely enlarged; severe dyspnea on exertion, elevation of systolic blood pressure, or such arrhythmias as paroxysmal auricular fibrillation or flutter or paroxysmal tachycardia; more than light manual labor precluded. A 100 percent rating was warranted for an active rheumatic disease, and with ascertainable cardiac manifestations, for a period of 6 months. Further, a 100 percent rating was also warranted for inactive rheumatic heart disease substantiated by clinical and roentgenogram confirmation of definite enlargement of the heart; dyspnea on slight exertion, rales, pretibial pitting at the end of the day, or other definite signs of beginning congestive failure; and preclusion of more than sedentary labor. 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997). Under the "new" criteria, valvular heart disease is rated at 30 percent when a workload of greater than 5 METs but not greater than 7 METs results 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 requires more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7000 (1999). When the criteria for evaluation of disabilities of the cardiovascular system were revised effective January 12, 1998, supplementary information was published in the Federal Register which included the following: We have ... revised the criteria to incorporate objective measurements of the level of physical activity, expressed in METs (metabolic equivalents), at which cardiac symptoms develop. .... [M]ultiples of resting oxygen consumption (or METs) are used to calculate the energy cost of physical activity. ... We have revised the criteria to assign a 30-percent evaluation if a workload of greater than five METs but not greater than seven METs produces symptoms. Activities that fall into this range include slow stair climbing, gardening, shoveling light earth, skating, bicycling at a speed of nine to ten miles per hour, carpentry, and swimming (Fox, S. M. III, Naughton, J.P., Haskell, W.L.: Physical activity and the prevention of coronary heart disease. Ann. Clin. Res., 3:404, 1971 and Goldman, L. et al.: Comparative reproducibility and validity of systems for assessing cardiovascular functional class: Advantages of a new specific activity scale. (Circulation 64:1227, 1981). METs are measured by means of a treadmill exercise test, which is the most widely used test for diagnosing coronary artery disease and for assessing the ability of the coronary circulation to deliver oxygen according to the metabolic needs of the myocardium (Cecil, 175 and Harrison, 966). Administering a treadmill exercise test may not be feasible in some instances, however, because of a medical contraindication, such as unstable angina with pain at rest, advanced atrioventricular block, or uncontrolled hypertension. We have, therefore, provided objective alternative evaluation criteria, such as cardiac hypertrophy or dilatation, decreased left ventricular ejection fraction, and congestive heart failure, for use in those cases. We have also indicated that when a treadmill test cannot be done for medical reasons, the examiner's estimation of the level of activity, expressed in METs and supported by examples of specific activities, such as slow stair climbing or shoveling snow that results in dyspnea, fatigue, angina, dizziness, or syncope, is acceptable. 62 Fed. Reg. 65,207, 65,210-65211 (emphasis added); see also 38 C.F.R. § 4.104. At the veteran's most recent VA medical examination for disability evaluation purposes in February 1998, the examiner opined that a workload of more than 5 METs would result in rather marked symptoms of dyspnea, fatigue, and dizziness in the veteran. The Board notes that this corresponds to the assigned rating of 30 percent under the "new" criteria. However, it is not clear from the examiner's opinion whether or not a workload of 3 to 5 METs, or less than 3 METs, would or would not produce such symptoms. Accordingly, clarification is necessary in order to resolve the veteran's claim. As an additional matter, it is noted that since the last VA medical examination for disability evaluation purposes was conducted more than two years ago, the Board is of the opinion that the evidence on file may not accurately reflect the current severity of the veteran's service-connected rheumatic heart disease. In fact, at the February 2000 personal hearing both the veteran and his spouse testified that his symptoms had gotten worse since the February 1998 VA medical examination. In claims for increased ratings, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994) (Emphasis added). Thus, even if the findings of the February 1998 VA medical examination were clear as to the severity of the veteran's heart disorder, a new examination would still be necessary in the instant case. The veteran also testified at his February 2000 personal hearing that he was no longer able to work as a result of his service-connected rheumatic heart disease. He testified that his heart condition had been so disabling that it precluded any sort of gainful employment. Thus, it appears that the veteran is claiming that he is entitled to a total rating based upon individual unemployability (TDIU). See 38 C.F.R. § 4.16. A review of the record shows that it does not appear that the RO has specifically adjudicated a TDIU claim. In VAOPGCPREC 6-96 General Counsel for VA made the following statements: . . . where the appealed "issue" concerns entitlement to an increased rating for a service-connected disability, we believe the Board would have jurisdiction to address, as a "subissue," the question of whether an increased rating may be warranted on a particular basis, including an extraschedular rating under section 3.321(b)(1) or a TDIU rating under section 4.16(b). The question of entitlement to a TDIU rating for a particular service- connected disability is in many respects similar to the question of entitlement to an extraschedular rating for such disability, although the questions are governed by separate regulations and different standards. Both questions concern entitlement to an increased rating for a service-connected disability on a basis other than the evaluations provided in VA's ratings schedule. Accordingly, the question of entitlement to a TDIU rating, when properly raised, may be considered a component of an increased-rating claim to the same extent that the question of extraschedular entitlement may be. Based on the foregoing, the Board finds that VA must consider whether the veteran is entitled to a TDIU as part of his increased rating claim. The Board acknowledges that the veteran's current claim has been in adjudicative status for many years. Therefore, the Board wishes to assure the veteran that it would not be ordering additional development at this point unless it was necessary for a fair and full determination of his case. For the reasons stated above, this case is REMANDED for the following: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for his rheumatic heart disease. After securing the necessary release, the RO should obtain those records not on file. 2. The RO should provide the veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. A reasonable period of time should be afforded the veteran in which to complete and return this document. 3. After obtaining any additional medical records to the extent possible, the RO should schedule the veteran for an examination to determine the current severity of his service-connected rheumatic heart disease. The claims folder should be made available to the examiner for review before the examination. The examiner should be requested to express an opinion as to the veteran's estimated level of activity, expressed in METs and supported by examples of specific activities, that leads to cardiac symptoms (see cited portions of 62 Fed. Reg. 65,207, 65,210- 65211, set forth above). Additionally, the examiner should express an opinion as to the level of industrial impairment the veteran experiences as a result of his service-connected rheumatic heart disease. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the examination report to ensure that it is responsive to and in complete compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing any additional development deemed necessary, the RO should readjudicate the issue on appeal in light of any additional evidence added to the record. The RO's determination should reflect consideration of whether the veteran is entitled to a TDIU. If the benefit requested on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).