Citation Nr: 0003020 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 98-12 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to an increased rating for ischemic heart disease as a residual of beriberi, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran had recognized service from December 1941 to September 1942, and from October 1944 to June 1946. He was a prisoner of war (POW) of the Japanese government from April to September 1942. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines, which continued the 30 percent evaluation of the veteran's service-connected ischemic heart disease. In May 1994, the veteran filed a claim of entitlement to service connection for ischemic heart disease. The RO denied this claim in June 1995. The veteran filed a notice of disagreement (NOD) with this decision in January 1996, and submitted a substantive appeal (Form 9) in July 1996, perfecting his appeal. A December 1996 rating decision granted service connection for ischemic heart disease based on the presumptive provisions for POWs under 38 C.F.R. § 3.309(c), and assigned a 30 percent evaluation. The veteran was notified of this decision, and did not file a notice of disagreement. Therefore, the issue of entitlement to a higher evaluation for ischemic heart disease was not in appellate status at that time. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board notes that in March 1997, the veteran filed a claim of entitlement to an evaluation in excess of 30 percent for his service-connected heart disorder. The RO continued the 30 percent evaluation of the ischemic heart disease in May 1997, and the veteran subsequently perfected his appeal. Therefore, the issue of entitlement to an increased rating for ischemic heart disease as a residual of beriberi, currently evaluated as 30 percent disabling, is before the Board at this time. Accordingly, the Board will limit its consideration to that issue. FINDING OF FACT The evidence of record demonstrates a history of repeated anginal attacks, precluding more than light manual labor. CONCLUSION OF LAW The schedular criteria for a 60 percent rating for ischemic heart disease have been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10 (1999); 38 C.F.R. § 4.104, Part 4, Diagnostic Code 7005 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran was a Prisoner of War (POW) from April 1942 to September 1942, following the fall of Bataan, and was confined at O'Donnell Concentration Camp, Capas, Tarlac. Historically, the veteran filed an initial claim of entitlement to service connection for various disabilities, including beriberi, in May 1978. The RO denied service connection for beriberi in August 1978, on the basis that the disability was not shown on VA examination the previous month. The veteran sought service connection for beriberi with heart disease in October 1983. In support of his claim, he attached a June 1983 private medical report noting a history of breathing difficulty and easy fatigability. Left ventricular hypertrophy by voltage criteria was diagnosed on VA examination in November 1983. A December 1983 rating decision denied service connection, on the basis that beriberi with heart disease was not shown to a degree of at least 10 percent disabling. This decision was confirmed by the Board in August 1984. A June 1993 private medical report notes complaints of chest pains with occasional difficulty breathing. Angina pectoris was diagnosed. The veteran sought service connection for ischemic heart disease in May 1994. A January 1995 private medical report notes complaints of severe chest pains with difficulty breathing. The pertinent diagnosis was ischemic heart disease. A March 1995 VA examination report notes a two-year history of ischemic heart disease. No evidence of heart disease was found on physical examination, however, and the examiner noted that findings were consistent with the veteran's age. Consequently, a June 1995 rating decision denied service connection for ischemic heart disease. On VA examination in September 1996, the veteran gave a three-year history of shortness of breath on climbing a flight of stairs, with chest tightness on deep breathing. He explained that these complaints progressed so that he was symptomatic on walking 500 meters. Current complaints included chest pains. An echocardiogram revealed arteriosclerosis, and showed an ejection fraction of 57 percent. The final assessment was arteriosclerotic heart disease, and left ventricular hypertrophy, not in failure, functional capacity II-B. In December 1996, the RO granted service connection for ischemic heart disease under the presumptive provisions for POWs under 38 C.F.R. § 3.309(c), and assigned a 30 percent evaluation. The veteran sought an increased evaluation for his service- connected ischemic heart disease in March 1997, asserting that the disease had increased in severity. A report from the veteran's private physician, dated later that month, indicates that he received treatment for "easy fatigability." A March 1997 VA examination report notes chest heaviness with blood pressure elevation when lying down. A physical examination revealed that the heartbeat was not palpable. There was a normal sinus rhythm, no murmur, and no orthopnea. The diagnostic impression was hypertensive arteriosclerotic heart disease, complete right bundle branch block, not in failure. The examiner commented that he was unable to assess the effect of the veteran's disorder on physical tolerance because mobility was limited by joint pains. Based on this evidence, a May 1997 rating decision continued the 30 percent evaluation of the veteran's service-connected ischemic heart disease. A July 1997 private examination report notes tachycardiac chest pains. The diagnostic assessment was severe ischemic heart disease with heart failure. A December 1997 private hospital report indicates that the veteran was admitted the previous month with complaints of dizziness, epigastric pain, and chest pain. The discharge diagnosis was ischemic heart disease, improved. A May 1998 VA examination report notes that the veteran developed dyspnea after walking 50 meters, and experienced angina in the precordial area with radiation to the left upper extremity. The veteran was noted to experience chest pain while at rest. The record reports two-pillow orthopnea, and paroxysmal nocturnal dyspnea when in the supine position. A physical examination revealed no evidence of congestive heart failure. There were no murmurs or thrills, and no evidence of rales, edema or liver enlargement. No cardiac abnormalities were noted on chest X-ray. An electrocardiogram (EKG) revealed a complete right bundle block. The examiner commented that there was no evidence of arteriosclerotic heart disease, or rheumatic heart disease. He explained that due to the findings of right bundle branch block on EKG, there was a problem in electrical impulse conduction in the heart, and the myocardial contraction may in turn affect his daily activity. Therefore, the physician recommended minimal activity. The RO continued the 30 percent evaluation of the veteran's service-connected ischemic heart disease in January 1999. Analysis In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In the instant case, there is no indication that there are additional records, which have not been obtained and which would be pertinent to the claim for an increased rating for ischemic heart disease. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4 (1999). The percentage ratings contained in the Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). In determining the disability evaluation, the VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2, which require the evaluation of the complete medical history of the veteran's condition. 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, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3 (1999). The Board notes that effective January 12, 1998, during the pendency of this appeal, the Schedule was amended with regard to rating disabilities of the cardiovascular system. 38 C.F.R. § 4.104. Because the veteran's claim was filed before the regulatory change occurred, he is entitled to application of the version most favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991). In the instant case, the RO provided the veteran notice of the revised regulations in the February 1998 Supplemental Statement of the Case. Thus, the Board finds that it may proceed with a decision on the merits of the veteran's claim, with consideration of both the pre-1998 and revised regulations, without prejudice to the veteran. See Bernard v Brown, 4 Vet. App. 384, 393-394 (1993). Prior to January 1998, Diagnostic Code 7005 provided a 30 percent evaluation for a veteran for whom, following a typical coronary occlusion or thrombosis or with a history of substantiated anginal attack, ordinary manual labor is feasible. A veteran for whom, following a typical history of acute coronary occlusion or thrombosis, or with a history of substantiated repeated anginal attacks, more than light manual labor is not feasible, is entitled to a 60 percent evaluation. Under those criteria, a veteran is entitled to a 100 percent evaluation during and for six months following acute illness from coronary occlusion or thrombosis with circulatory shock, and after six months, with chronic residual findings of congestive heart failure or angina on moderate exertion or if more than sedentary employment is precluded. 38 C.F.R. § 4.104, Diagnostic Code 7005 (1997). Following the January 1998 revision, Diagnostic Code 7005 provides that a veteran who, upon a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs, demonstrates dyspnea, fatigue, angina, dizziness or syncope, or shows evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram or X-ray, is entitled to a 30 percent evaluation. A veteran who demonstrates more than one episode of acute congestive heart failure in the past year or who demonstrates dyspnea, fatigue, angina, dizziness or syncope upon a workload of greater than 3 METs but not greater than 5 METs, or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent, is entitled to a 60 percent evaluation. A veteran who suffers from chronic congestive heart failure or demonstrates dyspnea, fatigue, angina, dizziness, or syncope upon a workload of 3 METs or less, or shows left ventricular dysfunction with an ejection fraction of less than 30 percent, is entitled to a 100 percent evaluation. Based on the foregoing, the Board finds that the current evidence supports a 60 percent rating for the veteran's service-connected ischemic heart disease under the old rating criteria. In particular, the medical evidence reveals a documented history of repeated anginal attacks. Further, on VA examination in May 1998, the veteran developed dyspnea after walking 50 meters, and experienced angina both at rest, and after walking 50 meters. He experienced two-pillow orthopnea, and paroxysmal nocturnal dyspnea. Following a physical examination of the veteran, the examiner recommended "minimal activity." Accordingly, after considering the specific rating criteria for the veteran's heart disease, the Board finds that a 60 percent rating is warranted under the old criteria. See 38 C.F.R. § 4.104, Diagnostic Code 7005 (1997). The question of whether an increased evaluation is warranted under the old or the new criteria will be addressed below in the remand section. Because the ultimate schedular evaluation remains unsettled, the Board will defer consideration of 38 C.F.R. § 3.321(b)(1) at this time. ORDER An increased rating for ischemic heart disease is granted to 60 percent, subject to the law and regulations governing the payment of monetary awards. REMAND It is the Board's determination that additional development is necessary as to the claim for an increased evaluation for ischemic heart disease. As noted above, the schedule for ratings with respect to the cardiovascular system was revised, effective January 12, 1998. See 38 C.F.R. § 4.104. Because the veteran's claim was pending at the time these regulations became effective, his claim has been considered under both the old rating regulations and the current regulations. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Pursuant to the above decision, the veteran's service-connected ischemic heart disease is currently rated as 60 percent disabling under the old rating criteria. The Board finds that the current medical evidence of record, including the May 1998 VA examination, is insufficient to determine the severity of the appellant's ischemic heart disease under the newly enacted regulations. While the medical evidence of record supports a 60 percent evaluation under the old criteria, it is unclear whether the veteran meets the criteria for an evaluation in excess of 60 percent under the old or new criteria. In this regard, the Board specifically must point out that the examiner was requested to comment on whether more than sedentary employment or more than light manual labor was feasible. The examination report does not clearly respond to these questions. It does contain the comment that the veteran's daily activities are affected and that "[m]inimal activity may be recommended up to a certain extent as tolerated by the patient." The Board is unable to determine precisely how this phase is to be interpreted in terms of whether the veteran can perform light manual labor or sedentary labor. Accordingly, a new VA examination of the heart should be scheduled and associated with the claims folder. The Court has held that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Halstead v. Derwinski, 3 Vet. App. 213 (1992). In view of the foregoing, and in order fully and fairly to evaluate the veteran's claim for an increased rating for ischemic heart disease, the case is REMANDED to the RO for the following actions: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should request that the veteran provide the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his service-connected ischemic heart disease since to the most recent VA examination in May 1998. After obtaining any necessary authorization, the RO should attempt to obtain copies of any treatment records identified by the veteran. 3. The RO should schedule a VA cardiology examination to determine the current manifestations of the veteran's service-connected ischemic heart disease. All indicated tests should be performed and all clinical findings should be reported in detail, including any left ventricular dysfunction with an ejection fraction, evidence of cardiac hypertrophy or dilation. Metabolic equivalency testing (MET) should be performed to determine the level of METs at which dyspnea, fatigue, angina, dizziness or syncope occur. If a laboratory determination of METs by exercise testing cannot be performed for medical reasons, the examiner should provide an estimation of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing) that would result in dyspnea, fatigue, angina, dizziness, or syncope in the appellant. A detailed history should be obtained, including the duration and frequency of anginal attacks. The clinical evaluation should include standing, sitting, and supine blood pressure readings. Any and all evaluations, tests, and studies deemed necessary should be accomplished and the findings reported in detail. The claims file and a copy of this remand must be made available to the cardiologist for review in conjunction with the examination. The cardiologist should indicate any appropriate activity limitations, specifically as to whether the veteran is capable of light manual labor or sedentary labor in view of his service connected cardiovascular disease alone. A complete rationale must be given for all opinions and conclusions drawn. The veteran is advised that failure to report for the scheduled examination may have adverse consequences to his claim, as the information requested on this examination addresses questions of causation and symptomatology that are vital to his claim. Moreover, under 38 C.F.R. § 3.655 (1999), where a claimant fails without good cause to appear for a scheduled examination in conjunction with a claim for increase, the claim will be denied. Connolly v. Derwinski, 1 Vet. App. 566 (1991). 4. Subsequently, the RO should readjudicate the veteran's claim for an increased rating for ischemic heart disease. In the event the veteran fails to report for scheduled examination without good cause, the RO should follow the provisions of 38 C.F.R. § 3.655(b). Thereafter, if the determinations remain adverse to the veteran, the RO should then furnish the veteran and his representative an SSOC in accordance with 38 U.S.C.A. § 7105(d) and 38 C.F.R. §§ 19.29 and 19.31, including summarization of all of the pertinent criteria. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence he desires to have considered in connection with his current appeal. No action is required of the veteran until he is notified. 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. Richard B. Frank Member, Board of Veterans' Appeals