Citation Nr: 0005275 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 98-18 055 A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a compensable evaluation for ventricular ectopy with recurrent syncope. 2. Entitlement to an increased evaluation for migraine headaches, currently evaluated 50 percent disabling. REPRESENTATION Appellant represented by: Jonathan B. Fairbank, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. W. Koennecke, Associate Counsel INTRODUCTION The appellant served on active duty from April 1989 to October 1991. This case comes before the Board of Veteran's Appeals (the Board) on appeal from a December 1997 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Ventricular ectopy with recurrent syncope is manifested by chest pain. 2. The appellant is at the maximum schedular evaluation for migraine headaches. CONCLUSIONS OF LAW 1. Ventricular ectopy with recurrent syncope is 10 percent disabling under the pre-1998 criteria for rating disorders of the cardiovascular system. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, § 4.104, Diagnostic Code 7015 (1997). 2. Migraine headache disability has been assigned the maximum schedular evaluation. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, § 4.124a, Diagnostic Code 8100 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issues on appeal stem from a December 1997 rating decision wherein the RO confirmed and continued noncompensable evaluations for service connected migraine headaches and ventricular ectopy with recurrent syncope from October 24, 1991, the date of separation from service. In March 1999, the evaluation for migraine headaches was increased to 50 percent from September 10, 1997, which was the date of receipt of claim for an increased evaluation. Accordingly, the issues before the Board are a determination of entitlement to a compensable evaluation for ventricular ectopy with recurrent syncope, and entitlement to an evaluation in excess of 50 percent for migraine headaches. The claim was remanded by the Board in November 1999 for the appellant to clarify a request for a Travel Board. In January 2000, the appellant indicated she did not wish a Travel Board hearing. Ventricular Ectopy with Syncope The claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). This finding is based on the appellant's contentions that the symptoms associated with her ventricular ectopy are more disabling than currently evaluated. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The RO has met its duty to assist the appellant in the development of her claim. under 38 U.S.C.A. § 5107 (West 1991). Records were obtained from all identified treatment sources, VA examinations were conducted in 1997 and 1998, and the appellant testified before the RO in November 1998. Furthermore, in March 1999, the appellant's attorney indicated that there was no outstanding evidence which would be relevant to this claim. Disability evaluations are determined by the application of a schedule of rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While evaluation of a service-connected disability requires review of the appellant's medical history, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Therefore, although the Board has reviewed all the evidence of record, it finds that the most probative evidence is that which has been developed immediately prior to and during the pendency of the claim on appeal. When all the evidence is assembled, the determination must then be made as to whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In testimony before the RO in November 1998, the appellant disagreed with the assigned evaluations. Most of the time she experienced sharp chest pain that was followed by a migraine headache 80 percent of the time. She noticed problems with her left hand and drawing in her neck. It was exacerbated by stressful situations or exertion. Doctors had recommended a pacemaker but she felt she was too young for that. She had symptoms two to three times per week and it was getting worse. Her medications were not working as well. The headaches had affected her job performance. She did not have syncope as often since she discontinued using beta- blockers, but past a certain point of exertion she would black out. The appellant's disability was initially evaluated by analogy under the schedule for rating the cardiovascular system, Diagnostic Code 7099-7015 for auriculoventricular block. In March 1999 the RO reclassified the disability under Diagnostic Code 7011 for sustained ventricular arrhythmias. The criteria for evaluating cardiovascular disorders changed in January 1998 and August 1998. The claim was filed in September 1997. When a regulation changes after a claim has been filed but before the appeal process has been completed, the version most favorable to the claimant will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). See 38 U.S.C.A. § 5110. Under the pre-1998 criteria for evaluation of auriculoventricular block, a 100 percent evaluation was assigned for complete block with attacks of syncope necessitating the insertions of a permanent internal pacemaker, and for 1 year, after which period the rating will be on the residuals. A 60 percent evaluation was assigned with complete block, Stokes-Adams attacks several times a year despite the use of medication or management of the heart block by pacemaker. With complete auriculoventricular block without syncope or as a minimum rating when a pacemaker had been inserted, a 30 percent evaluation was assigned. A 10 percent rating was assigned when the block was incomplete; without syncope but occasionally symptomatic. A noncompensable rating was assigned where the block was incomplete; asymptomatic, without syncope or need for medicinal control after more than one year. 38 C.F.R. § 4.104; Diagnostic Code 7015 (1997). The pre-1998 criteria directed evaluation of paroxysmal auricular fibrillation under the code for rating paroxysmal tachycardia. With severe, frequent attacks, a 30 percent evaluation was assigned. With infrequent attacks, a 10 percent evaluation was assigned. 38 C.F.R. § 4.104; Diagnostic Code 7011 (1997). Tachycardia, bradycardia and the various arrhythmias do not represent generally acceptable diagnoses. 38 C.F.R. § 4.100 (1997). Under the post-1998 criteria, both sustained ventricular arrhythmias (Diagnostic Code 7011) and atrioventricular block (Diagnostic Code 7015) are evaluated identically. When there is chronic congestive heart failure, or a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of less than 30 percent, a 100 percent evaluation is assigned. When there is more than one episode of congestive heart failure in the past year, or a workload of 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent, a 60 percent evaluation is assigned. When a workload of 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray, a 30 percent evaluation is assigned. When a workload of 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication is required, a 10 percent evaluation is assigned. 38 C.F.R. § 4.104, Diagnostic Code 7007. VA Medical Center records from March 1996 documented a complaint of recurrent chest pain. The symptoms had become more severe in the prior 6 to 8 weeks, with symptoms characterized as moderately severe and occurring one to two times per week. The pain was located medially and left parasternally. It was a cramping pain in quality and of 5 to 10 minutes in duration. There was no radiation or associated symptoms. The severe episodes were followed by migraine headaches within 24-hours. It was nonexertional and occurred primarily in the daytime, with relieving and exacerbating factors. On examination, her heart exhibited a normal rate and rhythm. Electrocardiogram revealed mild, diffuse T-wave flattening. A VA examination was conducted in October 1997. At that time she had stopped taking beta-blockers and had more exercise tolerance. She had approximately 1/4-mile dyspnea on exertion when running. Leisure walking did not produce symptoms. There was no anginal component. She was not taking any medications. No syncopal episodes had been documented. Electrocardiogram revealed a normal sinus rhythm with a sinus arrhythmia without left ventricular hypertrophy. There was no hypertension. She had a regular rate and rhythm of 72. S1/S2 were normal, S3/S4 were absent. There were no murmurs, rubs or extra sounds on auscultation. A Holter monitor test completed in September 1992 had revealed intermittent sinus bradycardia, sinus arrhythmia and sinus tachycardia; ventricular ectopy; no supraventricular ectopy. She was diagnosed with exercise-induced ventricular ectopy without documented syncope. The examiner opined that sedentary employment or light manual labor was feasible, but that anything more than that would create a 50 to 75 percent loss of productivity. (The Board notes that the rating decision of December 1997 failed to fully report the examiner's opinion). A VA examination was conducted in December 1998. She reported that over the prior year she had episodes of irregular heartbeat on a daily basis, occurring about twice a day and lasting a few minutes. These episodes were precipitated by stress at work and by varying degrees of physical activity. She recognized the onset of these episodes and had to quit whatever she was doing and rest in order to avoid progression of the problem. She recalled one or two episodes of loss of consciousness over the prior year. Her irregular heartbeat was associated with chest pain in the form of cramps, shortness of breath and a feeling of dizziness. She was not taking any cardiac medication. She had lost many days from work mainly due to migraine headaches. Auscultation of her heart revealed a regular rate and rhythm and normal S1 and S2. There were no murmurs, rubs or gallops. The point of maximum impulse was nondisplaced. There was no hepatojugular reflux and no lower extremity edema. Electrocardiogram revealed normal sinus rhythm. Exercise tolerance testing concluded at maximal tolerance. She was clinically normal and her electrocardiogram was normal. Workload was 12 METs. Her exercise tolerance was good and her heart rate response was normal. There were no ST segment changes on electrocardiogram. There were no significant arrhythmias. The diagnosis was cardiac arrhythmia with associated syncope and chest pain. The examiner concluded that the cardiac arrhythmia limited the options for treatment of the migraine headaches. In an undated statement from Dr. E. M., it was his opinion that the appellant needed a referral to an electrophysiologist for an electrophysiologic study regarding her history of syncope with positive significant ventricular ectopy. The appellant documented her employer leave policy and days missed from work alleged to be due to migraine headaches. However, comparing the pre-1998 criteria to the post-1998 criteria, the Board believes that the pre-1998 criteria are more favorable to the appellant. The appellant's disability falls within the 10 percent evaluation under the pre-1998 criteria for auriculoventricular block (Diagnostic Code 7015). As the workload associated with exercise tolerance testing in December 1998 was 12 METs and the appellant is not taking any medication for this disability, a compensable evaluation is not assignable under the post-1998 criteria. Because the RO considered the appellant's disability under both criteria (although on separate occasions), a Bernard issue is not raised by the Board's consideration of both criteria in this decision. Bernard v. Brown, 4 Vet. App. 384 (1993). The evidence supports a 10 percent evaluation under the criteria for auriculoventricular block, as the Board finds there is competent evidence that the disability was occasionally symptomatic. The appellant is competent to report her symptoms, including chest pain. Lay testimony is competent when it regards features or symptoms of injury or illness, but may not be relied upon for establishing a medical diagnosis, be that a current diagnosis or one linking a current disability to service. Layno v. Brown, 6 Vet. App. 465. 469-70 (1994). A VA examiner in December 1998 associated the service connected cardiac arrhythmia with chest pain. In addition, the October 1997 examiner opined that if the appellant engaged in more than sedentary employment, there would be a 50-75 percent loss in productivity. This again supports the view that the disorder is not asymptomatic. Accordingly, competent evidence of symptomatic arrhythmia has been presented and a 10 percent evaluation is warranted. Under the pre-1998 criteria, a higher evaluation is not warranted. Competent evidence of complete heartblock has not been presented. A pacemaker has not been inserted, and the attacks of arrhythmia have not been described by competent professionals as severe or frequent. Although the appellant was complaining of attacks twice daily in December 1998 precipitated by stress and physical exertion, no arrhythmias were demonstrated on exercise tolerance testing. As to a higher evaluation, the preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49 53 (1990). In light of the October 1997 examiner's statement that the disability might affect productivity, the Board has considered referral of the issue to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The U. S. Court of Appeals for Veterans Claims (known as the United States Court of Veteran's Appeals prior to March 1, 1999) (hereinafter Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). Further action is not warranted because the examiner implied in that statement that full employment was possible so long as it was sedentary. No evidence has been presented showing frequent periods of hospitalization, and the standard of marked interference with employment has not been met due to the evidence that demonstrated gainful employment. Furthermore, the appellant's own statements tend to establish that time lost from work was due to migraine headaches. Migraine Headaches Service connection was granted for migraine headaches in October 1992 and the disability was assigned a noncompensable evaluation. In September 1997, the appellant filed a claim for an increased evaluation for migraine headaches. This appeal stems from the December 1997 rating decision that confirmed and continued the noncompensable evaluation. During the pendency of the appeal, the evaluation was increased to 50 percent from September 10, 1997, the date of receipt of the claim for an increased rating. The claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). This finding is based on the appellant's contentions that her migraine headaches had increased in severity. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The RO has met its duty to assist the appellant in the development of her claim. under 38 U.S.C.A. § 5107 (West 1991). Records were obtained from all identified treatment sources, VA examinations were conducted in 1997 and 1999, and the appellant testified before the RO in November 1998. Furthermore, in March 1999, the appellant's attorney indicated that there was no outstanding evidence which would be relevant to this claim. The Board notes that the claim for an increased evaluation was granted in a March 1999. A 50 percent evaluation was assigned from the date of receipt of the claim for the increased rating. The maximum schedular evaluation for migraine headaches is 50 percent. See, 38 C.F.R. Part 4, Diagnostic Code 8100 (1999). There is no provision for a higher evaluation for this disability, and no evidence that the disability is more appropriately evaluated under another Diagnostic Code. Here, the appellant is at the maximum schedular evaluation for her headache disability. Since all potential schedular benefits were established, the appeal is no longer well grounded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Similarly, in Shipwash v. Brown, 8 Vet. App. 218, 224 (1995), as to an original claim, the Court stated that when a claimant is seeking an increased evaluation, the claim is well grounded only as long as the rating schedule provides for a higher evaluation. Where the law and not the evidence is dispositive, the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law. Sabonis v Brown, 6 Vet. App. 426, 430 (1994). The Board has also considered referral of this issue to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). Frequent hospitalizations for migraine headaches have not been demonstrated. The appellant has testified that she has lost time from work due to migraine headaches. The Board accepts the appellant's statements and finds that her statements, in addition to the other evidence she has submitted, objectively establishes that she has lost time from work due to migraine headaches. However, the second standard for extraschedular consideration is marked interference with employment, such that an exceptional or unusual disability picture has been presented. The criteria for an award of a 50 percent evaluation for migraine headaches requires very frequent, completely prostrating and prolonged attacks productive of severe economic impairment. An assignment of a 50 percent evaluation recognizes severe economic impairment or in other words, the interference the appellant has experienced with her employment. Since the appellant's economic impairment due to migraine headaches is specifically compensated under the assigned schedular criteria, an exceptional or unusual disability picture has not been presented. Therefore, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). ORDER A 10 percent evaluation for ventricular ectopy with recurrent syncope is granted, subject to the controlling regulations applicable to the payment of monetary awards. An increased evaluation for migraine headaches is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals