BVA9508240 DOCKET NO. 91-16 344 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Increased rating for valvular heart disease with arteriosclerotic heart disease and hypertension, status post aortic valve replacement and status post myocardial infarction, currently rated as 30 percent disabling. 2. Service connection for Meniere's disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William L. Pine, Counsel INTRODUCTION The appellant served on active duty from June 1957 to July 1984. This appeal is from the July 1989 and the March 1990 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO), which respectively denied service connection for Meniere's disease and an increased rating for valvular heart disease. In a statement of December 28, 1988, the appellant averred that his service-connected anxiety disorder was becoming worse. In a statement of May 1, 1994, the appellant averred that he has suffered non-cardiac chest pain ever since the 1988 surgery for his valvular heart disease; a VA examination report of November 1989 noted a tender surgical scar. It appears that the appellant has reasonably raised claims for increased rating and for service connection for disabilities resulting from the surgery for his service-connected valvular heart disease. Such claims are not "inextricably intertwined," Harris v. Derwinski, 1 Vet.App. 180 (1991) with the claims at issue. They are referred to the RO for appropriate development. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that he is more than 30 percent disabled by valvular heart disease and that his currently diagnosed Meniere's disease originated in service. He argues that his limited stamina, hypertension, and arrhythmias constitute more than 30 percent disability. He further argues that the symptoms of which he complained and for which he was evaluated in service in 1972 are the same as those diagnosed as Meniere's disease in 1988, therefore service connection is warranted for Meniere's disease. He further argues that in light of the government's inability to produce service medical records predating 1975, his statements should be taken as credible and sufficiently probative to gain him the benefit of the doubt as to the time of onset of Meniere's disease. 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 veteran's claims file(s). 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 an increased rating for valvular heart disease with arteriosclerotic heart disease and hypertension is warranted, and service connection for Meniere's disease is warranted. FINDINGS OF FACT 1. The appellant has mild left atrial enlargement without enlargement of the heart; hypokinesis of the distal posterior septum; normal main left coronary artery, left anterior descending and left circumflex arteries and their branches, but with mild intimal irregularities in these and in the right coronary artery, but with no significant stenosis except very distal 70 percent stenosis of a small posterior ventricular branch, and elevated systolic blood pressure; more than light labor is precluded. 2. Meniere's disease originated in service. CONCLUSION OF LAW 1. The schedular criteria for a 60 percent rating for valvular heart disease with arteriosclerotic heart disease and hypertension, status post aortic valve replacement and status post myocardial infarction, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7016-7000-7005 (1993). 2. Meniere's disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we find that the appellant's claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The RO has diligently sought additional service medical records from the custodians of such records, without success. The February 1994 VA examination report noted an impending diagnostic test, but there is no indication whether the test was accomplished. In a statement of May 1, 1994, the appellant informed the RO of recent VA medical treatment the records of which the RO had not obtained, but he explicitly stated that he felt further action by the RO would serve no purpose and he did not want his appeal delayed further. In light of the appellant's explicit preference to forgo further assistance in developing his claim, the Board deems VA's duty to assist the appellant in developing his case, id., to be discharged. 1. Increased Rating for Heart Disease Review of the procedural history of this disability claim reveals that the original, September 1984, grant of service connection for valvular heart disease was rated by analogy to rheumatic heart disease. See 38 C.F.R. § 4.104, Diagnostic Code 7000 (1994) [hereinafter Diagnostic Code 7000]. A rating action of January 1985 amended the grant and the diagnostic nomenclature, including "with hypertension and history of myocardial infarction," but continued rating the disability under Code 7000. In a rating action of November 1988, the nomenclature was again amended to "valvular heart disease with hypertension, postoperative aortic valve replacement," rated under code 7000- 7016. In a rating action of March 1990, the code designation was reversed, i.e., 7016-7000. Whereas acute myocardial infarction (MI) is construed under the rating schedule as a severe manifestation of arteriosclerotic heart disease (ASHD), see Code 7005 (acute illness from coronary occlusion or thrombosis, with circulatory shock, etc.), the appellant must, in light of the January 1985 rating decision, be deemed service connected for ASHD, regardless of the selection of diagnostic codes by the rating board. For that reason, the Board has denominated the service-connected disability as in the Issue, supra. The selection of rating codes and the associated assignment of percentage ratings must be done so as to avoid duplicative ratings for multiple diagnoses affecting a single organ or bodily system, called "pyramiding," in rating parlance, 38 C.F.R. § 4.14 (1994), and to reflect as accurately and completely as possible the underlying disease and the residual condition resulting in disability. 38 C.F.R. § 4.27 (1994). Moreover, "[i]n the citation of disabilities on rating sheets, the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature." Id. The significance in this case of the regulations requiring the use of diagnostic terminology and governing the selection of rating codes is that a comprehensive review and evaluation of the appellant's service-connected disability of the cardiovascular system, 38 C.F.R. § 4.100-.104 (1994), requires analysis of the entire disability picture attributed to each of the diagnostic elements of the service-connected disability: valvular heart disease, ASHD, and hypertension, as well as any residual disability attributable to any of the residuals of acute manifestations of those diseases. In review of this case, the Board will consider the total disability picture resulting from the combined effects of the diagnostic elements of the service- connected disability. Service medical records reveal that the appellant was diagnosed with aortic valve stenosis in service. He underwent aortic valve replacement in September 1988. Follow-up records from Brooke Army Medical Center (BMAC) and from Eisenhower Army Medical Center (EAMC) from October 1988 to January 1992 revealed increased exercise tolerance relative to his pre-operative status, but a stress test of February 1990 revealed a decreased exercise tolerance, presumably relative to the established criteria for evaluating such tests. A 24 hour Holter monitor study of February 1990 revealed rare premature ventricular contractions and no advanced ectopy. Additionally, an electrocardiogram (ECG) done in service in October 1983 revealed an inferior myocardial infarction (MI), noted also in the diagnosis of an October 1984 VA examination report. A cardiac catheterization of August 1988 at EAMC revealed no significant stenosis except for a very distal 70 percent stenosis of a small posterior left ventricular branch, but the impression recorded was of significant coronary artery disease. There was, however, a heavily calcified aortic valve with aortic insufficiency. Hypertension was diagnosed circa June 1993, at which time an ECG revealed an old inferior infarct, according to a January 1994 VA examination report. Multiple hospital admissions at EAMC from 1989 to 1992 for complaints of chest pain have elicited repeated cardiac work-ups, which have each ruled out acute myocardial infarction or other cardiac cause, finding chest wall or post-sternotomy musculoskeletal pain in each instance. On VA examination in January 1994, the appellant complained of chest pain and heart palpitations of five years duration. He reported that a Holter monitor study done at EAMC revealed arrhythmias, which the physicians there felt did not require treatment. He denied shortness of breath. His current medications included Lotensin, Indocin and Valium. On physical examination, his blood pressure was 150/110, the cardiac apex was not palpable, the first heart sound was normal, a prosthetic second sound was heard, no murmurs or added sounds were heard, the radial pulse was normal, no thrills were palpable. An ECG done in June 1993 showed a normal sinus rhythm, first degree AV block, left anterior fascicular block and old inferior infarct. An echocardiogram done in June 1993 showed mild left atrial enlargement; hypokinesis of distal posterior septum, but otherwise normal left ventricular contractility; ejection fraction was normal; prosthetic aortic valve was seen; no obvious prosthetic valve abnormality was found; no clots, masses, or effusions were seen; peak aortic gradient was 16 millimeters of mercury. The diagnoses included aortic valve replacement; hypertension; chest pain, possibly cardiac (thallium stress test pending); palpitations (exact diagnosis of arrhythmia not available for lack of Holter records from EAMC); ECG and echo evidence of old MI, without confirmation by history from appellant. The appellant stated in his substantive appeal that his exercise tolerance was less than before his heart surgery, that his job is sedentary and he cannot do more than light labor. In a statement of May 1994 the appellant averred that despite the use of medication, neither the VA Medical Center (VAMC) nor EAMC had been able to stabilize his hypertension. The appellant's heart disability is service-connected as a heart valve replacement (prosthesis), 38 C.F.R. § 4.104, Diagnostic Code 7016 (1993), which, beginning one year after implantation of the prosthetic valve, is rated as rheumatic heart disease; minimum rating 30 percent. Id. The next higher rating for rheumatic heart disease is 60 percent, for which the following criteria pertain: "The heart 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 is precluded." 38 C.F.R. § 4.104, Diagnostic Code 7000 (1993) [hereinafter Code 7000]. "In view of the number of atypical instances it is not expected . . . that all cases will show all the findings specified. Findings sufficiently characteristic to indentify the disease and the disability therefrom and above all, coordination of rating with impairment of function will, however, be expected in all instances." 38 C.F.R. § 4.21 (1993). The appellant avers he is precluded from all but light manual labor. There is enlargement shown, as well as systolic hypertension. Decreased exercise tolerance is reported. Finding no clear reason to doubt the credibility of the veteran, the balance of the evidence as to preclusion from all but light manual labor favors finding that criterion for a 60 percent rating satisfied. The rare PVCs noted in the February 1990 Holter report are not the type that are rating criteria under Code 7000, nor is there evidence of severe dyspnea on exertion. In sum, the appellant satisfies or approximately satisfies a significant number of criteria for a 60 percent rating under the code. Taking his statement as to the extent of his functional limitations, the evidence shows that the "disability picture more nearly approximates the criteria required" for a 60 percent rating than for the current 30 percent rating. 38 C.F.R. § 4.7 (1993). Whereas the finding of entitlement to a 60 percent rating is based on finding a near approximation of those criteria, and virtually none of the criteria for a 100 percent rating are in evidence, see Code 7000, a rating higher than 60 percent is not reasonably for consideration at this time. 2. Service Connection for Meniere's Disease Available service medical records include a report of a June 1957 physical examination upon entrance into the service, which was essentially normal, and treatment and hospital records from April 1975 until the time of separation in July 1984. As to the 18 year hiatus in medical records, the only reasonable conclusions are that the appellant did have medical examinations or treatment during that time and the records are misplaces. Given the unavailability of service records, the Board's "obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened." O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). The available service medical records include several complaints of headache and dizziness in April and May 1975 and in April 1984. The record noted a history of work-up in 1972 for such complaints, and in April 1984 the record noted at Walter Reed Army Medical Center (WRAMC) to rule out brain tumor. The recorded history also noted that the appellant's valvular heart disease was found at WRAMC in 1972. Treatment records from April 1975 to April 1988 include numerous complaints of headaches, variously thought to be tension headaches, i.e., related to anxiety, vascular headaches, either migraine-type vascular or cardiac related, and audiometry findings of normal hearing. A treatment note of April 18, 1984, noted a history of dizziness and fainting spells with a reported 1972 diagnosis of head pain and dizziness; currently, the impression was dizziness, no pathology found. The separation examination was positive for muscle contraction headaches, and audiometry findings were normal. The appellant submitted his original claim for VA benefits in August 1984. It included a claim for headaches, allegedly beginning in 1963. There was no mention of dizziness or of Meniere's disease. The appellant had a VA examination in October 1984. The RO's request for examination listed headaches as among the reasons for the examination. On general physical examination, the appellant was found to have moderate dizziness on bending over, deemed a cardiac symptoms. His hearing was normal, as were the tympanic membranes, clinically. On neuro-psychiatric examination, he reported a history of headaches since 1963, and that on work-up at WRAMC in 1971 he was told it was nerves. The VA general physical diagnoses were cardiovascular, musculoskeletal and genitourinary; there was no otological diagnosis. There was a psychiatric diagnosis of anxiety reaction associated with headaches. In January 1988, the appellant was seen at a VAMC for outpatient audiology treatment. He complained of vertigo since December 17, 1987. He gave a history of episodes of vertigo in 1967, 1972 and 1985. An electronystagmography (ENG) study was consistent with peripheral vestibular dysfunction. The recorded impression was Meniere's disease. A June 1988 outpatient record noted probable Meniere's disease. In January 1988, the appellant was seen at EAMC for complaints of vertigo, headaches, and ringing in the ears which had been ongoing since December 16, 1987. He reported a history of vertigo beginning about 1967. A computed tomography (CT) study was negative. The neurology consultants impression was atypical migraine, without evidence of acoustic neuroma. In April 1988, he complained of chronic vertigo of four months duration. In July 1988, the appellant saw William H. Moretz Jr., M.D., who recorded a history of problems with equilibrium since the early 1960's. An electrocochleography study was suggestive of endolymphatic hydrops or Meniere's disease. An August 1988 EAMC report of further work-up noted negative CT, negative magnetic resonance imaging (MRI), negative brainstem response audiometry (BRA), negative electroencephalogram (EEG), positive electronystagmography (ENG) and positive audiogram. The ENG revealed a right sided peripheral vestibular weakness. The audiometry study revealed bilateral, symmetrical high frequency sensorineural hearing loss. Electrocochleography was suggestive of Meniere's disease. The impression was vertigo and headaches of unknown etiology. Cardiac catheterization was recommended to rule out vascular etiology. An October 1988 cardiac catheterization at EAMC found significant aortic valve stenosis and coronary artery disease, but no findings were reported as associated with the complaints of headaches or vertigo. Subsequent treatment records at both EAMC and the VAMC bear the diagnosis and reveal ongoing treatment for Meniere's disease. The evidence does not clearly show Meniere's disease in service. A condition noted in service without adequate evidence to find chronicity in service may be service connected upon a showing of continuity of symptomatology. See 38 C.F.R. § 3.303(b) (1993). The appellant was out of the service for approximately three and one half years before he sought treatment for vertigo. The history provided by the appellant in January 1988 of an episode of vertigo in 1985, deemed credible, indicates symptomatology the year after separation. A precise description of the symptoms the appellant suffered in 1972 would be highly pertinent to the resolution of the appellant's claim. Whereas the symptoms as of December 1987 are well described, a precise description of the presenting symptoms in 1972 would be virtually determinative of whether the currently diagnosed Meniere's disease and the symptomatology present in 1972 were a single, continuous symptomatology. Whereas the records are unavailable, we must assess the credibility of the appellant's assertions that they were the same. Nothing impeaches the credibility of the 1975 service medical history of work-up at WRAMC in 1972 for complaints of headaches and dizziness. There is no clear basis to reject the appellant's assertions that the symptoms diagnosed in 1988 as Meniere's disease and those he experienced in service were essentially the same. The fact that he has variously dated the onset of dizzy spells in the early 1960's, 1967, 1971 and 1972 does not render incredible the assertion that he sought treatment in 1972, which is corroborated in the 1975 service medical records. Additionally, the failure to claim Meniere's in the original VA claim in August 1984, though it casts some doubt on the credibility of his history, is not materially inconsistent with his history, which reported a hiatus of 1972 to 1985 between episodes. It had been some years since an episode at the time he filed the claim. The exact nature of the appellant's symptoms of dizziness were clearly a point of medical inquiry for many years prior to the diagnosis of Meniere's disease. The symptoms were variously thought to be anxiety related, cardiac and migraine before Meniere's was diagnosed. Finally, after extensive testing and results not all pathognomonic for Meniere's, the diagnosis has been generally accepted by VA and EAMC physicians. Seeing the entire record together does not, on the basis of medical evidence alone, resolve the question whether similarly presenting symptoms had different etiologies at different times or were the same entity, Meniere's disease, in an atypical presentation and difficult to diagnose. In this context, the Board finds credible the appellant's assertion that he continuously has had the same condition. In sum, the absence of even a consideration of Meniere's disease in the available service medical record and the discontinuity in time between the 1972 episode of vertigo and the 1987 episode, or even the 1985 episode, deeming the appellant's report credible, weigh against the appellant's claim. Contrarily, his credible assertion that the symptoms of dizziness or vertigo he experienced first in service and ever since have been the same consistently, combined with the obviously complex medical problem of establishing the diagnosis is strong evidence in support of his claim. The evidence for and against the claim is essentially in equipoise, and the appellant is entitled to the benefit of the doubt. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The benefit of the doubt thus given, all the evidence taken together, including that pertinent to service, establishes that the Meniere's disease diagnosed in 1988 was incurred in service, 38 C.F.R. § 3.303(d) (1993), and service connection is warranted. ORDER A 60 percent rating for valvular heart disease with hypertension, status post aortic valve replacement, is granted, subject to the regulations governing payment of monetary benefits, and service connection for Meniere's disease is granted. KENNETH R. ANDREWS, JR. 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.