Citation Nr: 0000936 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 98-04 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an evaluation in excess of 10 percent for rheumatic heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David T. Cherry, Associate Counsel INTRODUCTION The veteran served on active duty from December 1970 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO). In his March 1998 VA Form 9, the veteran requested a travel Board hearing. However, in a June 1998 statement, the representative indicated that the veteran no longer wanted a hearing. Therefore, no further development with regard to a hearing is necessary. FINDINGS OF FACT 1. The veteran's rheumatic heart disease is not manifested by either (1) a recurrence of rheumatic fever, with cardiac manifestations, within the past three years; or (2) a diastolic murmur with characteristic electrocardiogram manifestations or a definitely enlarged heart. 2. The veteran's rheumatic heart disease is not manifested by any of the following: (1) a workload of greater than five metabolic equivalents but not greater than seven metabolic equivalents results in dyspnea, fatigue, angina, dizziness, or syncope; or (2) evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for rheumatic heart disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7000 (1999); 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the claim is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board also finds that all relevant evidence has been obtained and that the duty to assist the claimant is satisfied. Factual Background In an October 1974 rating decision, service connection was granted for rheumatic heart disease, with an anterodiastolic murmur and aortic insufficiency. A 10 percent disability rating was assigned. In a December 1981 decision, the Board denied a claim for a rating in excess of 10 percent for rheumatic heart disease. VA medical records reveal that the veteran underwent an echocardiogram in June 1992. The results of that echocardiogram were the following: aortic root dilatation; aortic valve and root sclerosis, with mild aortic regurgitation; and minor tricuspid and mitral regurgitation. Chest X-rays taken in July 1992 were normal. The veteran underwent several electrocardiograms (EKGs) in July 1992. The last EKG in July 1992 revealed sinus tachycardia. In August 1992, the assessment was rheumatic fever at age seven along with rheumatic heart disease that was manifested by mild aortic and mitral insufficiency. The impressions from an October 1993 echocardiogram were the following: dilated aortic root; aortic sclerosis, with mild aortic insufficiency; and borderline ventricular hypertrophy, suggestive of a slightly decreased left ventricular function. The veteran was afforded a VA general medical examination for pension purposes in October 1995. Physical examination revealed that the point of maximal impulse was at the fifth left intercostal space at the midclavicular line. There were no heaves or thrills. A Grade II/VI crescendo/decrescendo- type murmur was present and was best heard at the second right intercostal space at the sternum. A Grade II/IV blowing holodiastolic murmur was also heard at the second right intercostal space at the sternum; that murmur radiated into the neck. A loud S4 gallop was also present. Peripheral pulses were 3+, symmetric bilaterally, and without bruits. Chest X-rays revealed the presence of a nonspecific tiny nodule in the right upper lung, but were otherwise unremarkable. An EKG was normal. The clinical impression was that there was auscultatory evidence of aortic stenosis and aortic insufficiency, which was compatible with rheumatic valvular heart disease. In July 1997, the veteran filed a claim for an increased rating for his rheumatic heart disease. The veteran was afforded a VA fee-basis examination in October 1997. He stated that he had had rheumatic fever when he was five years old and that when he was discharged from service he was given a 10 percent rating for heart disease. The veteran also reported a history of aortic stenosis and mitral valve prolapse. He reported having shortness of breath, that he felt dizzy every other day, that his legs cramped after activity; and that he felt tired all the time and could not lay carpet anymore. He complained, further, of heart palpitations. The veteran was noted to have multiple disabilities, including bipolar disorder, rheumatoid arthritis and Crohn's disease. Physical examination revealed that the heart had regular rate and rhythm. The point of maximal impulse was in the fifth intercostal interspace. There was a Grade II murmur at the right second intercostal interspace, which radiated to the neck. A loud S4 gallop was heard. Blood pressure was 140/90, and pulse was 76. There were no varicosities or swelling of the lower extremities. The diagnosis was remote childhood rheumatic fever, with resultant aortic stenosis and aortic insufficiency that was secondary to rheumatic heart disease. The examiner indicated that this disorder was a severe impairment. VA medical records reveal that in April 1998 the veteran complained of shortness of breath, especially on exertion. Physical examination revealed prominent first and second heart sounds. A faint systolic ejection murmur was heard in the aortic area. It was noted that the February 1998 EKG and chest X-rays were normal. The assessment was valvular heart disease. In May 1998, the veteran was afforded another VA examination. He reported that he had had more shortness of breath on exertion in the past year and that his feet had been cold for the past year. The veteran also indicated that he had had chest pain and that he also had had minimal ankle edema for the past two months. Physical examination revealed that the heart rate was regular. There was a systolic murmur, which was best heard at the aortic area and which radiated into the neck and the left chest. The lungs were clear to auscultation. There was no axillary adenopathy. With regard to the extremities, the femoral pulsations seemed weaker than normal; the examiner could barely feel the popliteal pulsations and could not feel any arterial pulsations in either foot. There was no edema of the lower extremities. The impressions were stable rheumatic heart disease, involving the aortic valve; and chest pain with an unknown etiology. The veteran also underwent an echocardiogram in late May 1998 as a part of the VA examination. M-mod measurements showed that the following fell within the stated normal ranges: left ventricle (LV) in diastole and systole; percent fraction short; septum; and posterior left ventricle wall. The conclusions were that there were a normal left ventricle; normal atrial and right ventricular dimensions; thickened aortic value leaflets, cannot exclude bicuspid value with raphe between right and left coronary cusps; no aortic stenosis or aortic insufficiency; and otherwise normal valve morphology and flow patterns. VA medical records reflect that, in June 1998, the veteran complained of chest pain caused by anxiety and stress and shortness of breath, especially with exertion. Physical examination revealed that the chest was clear to percussion and auscultation. Blood pressure was 109/87. The heart had a regular rate. The first and second heart sounds were normal, and there were no murmurs. The diagnoses were coronary atherosclerosis of an unspecified type of vessel, native or graft; coronary artery disease; and endocarditis, valve unspecified, unspecified cause, valvular heart disease. The veteran underwent an exercise treadmill electrocardiogram in July 1998 as a part of his VA examination. The report reflects a preliminary cardiac diagnosis of questionable angina. Observations were that the regular Bruce protocol was used; that the test was stopped due to shortness of breath and pain in the anterior chest; that there were no exam changes; that there were no symptoms other than exercise shortness of breath and dizziness (with a notation that the veteran was very vocal about his condition); and that there were no arrhythmias except occasional ectopy. It was concluded that there had been fairly good response hemodynamically; that the test "possibly" was positive; and that the veteran gave a strong suggestion of cardiac pain with emotion and exercise. In a September 1998 addendum, the May 1998 VA examiner noted that she had reviewed the veteran's claims folder and VA medical records. It was noted that the veteran was able to perform a workload of 10 METs during his exercise treadmill test in July 1998. The doctor also noted that the latest echocardiogram showed thickening of the aortic valves without aortic stenosis or aortic insufficiency, and that that abnormality was not sufficient to cause or contribute to the veteran's reported chest pain. The doctor also noted that rheumatic valvular heart disease does not cause, contribute to the development of, or aggravate hypertension. Accompanying the addendum is a copy of a computerized summary of the veteran's treadmill test results, which notes that the test had been stopped due to chest tightness and shortness of breath and that a workload of 10 METs had been attained. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999), 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 the 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). All benefit of the doubt will be resolved in the veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 4.3 (1999). The Board notes that, effective January 12, 1998, during the pendency of this appeal, the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4, was amended with regard to rating disabilities of the cardiovascular system. 62 Fed. Reg. 65,207 (1997) (codified at 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. However, the effective date of January 12, 1998, for the revised criteria prevents the application prior to January 12, 1998, of those criteria. In other words, prior to January 12, 1998, only the old criteria will apply, but from January 12, 1998, to the present, the veteran is entitled to the application of the criteria most favorable to him. See Rhodan v. West, 12 Vet. App. 55 (1998); Karnas v. Derwinski, 1 Vet. App. 308, 311 (1991). In the instant case, the RO has provided notice to the veteran of, and also applied, the revised regulations. Thus, the Board finds that it may proceed with a decision on the merits of the veteran's claim, with consideration of the original and revised regulations, and without prejudice to the veteran. See Bernard v Brown, 4 Vet. App. 384, 393-94 (1993). Under the pre-January 12, 1998 rating criteria, a 10 percent disability rating for rheumatic heart disease is warranted for the following: an identifiable valvular lesion; slight, if any, dyspnea; and the heart is not enlarged. 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997). A 30 percent evaluation is warranted for three years following the termination of an established service episode of rheumatic fever or a subsequent recurrence, with cardiac manifestations during the episode or recurrence. Id. A 30 percent disability rating is also warranted for a diastolic murmur with either characteristic EKG manifestations or a definitely enlarged heart. Id. A 60 percent evaluation requires the following: the heart definitely enlarged; severe dyspnea on exertion, evaluation of systolic blood pressure, or such arrhythmias as paroxysmal auricular fibrillation or flutter or paroxysmal tachycardia; and more than light manual labor is precluded. Id. A 100 percent evaluation requires the following: definite enlargement of the heart, confirmed by roentgenogram and clinically; dyspnea on slight exertion; rales, pretibial pitting at the end of the day or other definite signs of beginning congestive failure; and more than sedentary employment is precluded. A 100 percent disability rating is also warranted during a period of active rheumatic heart disease and for a period of six months following a period of active rheumatic heart disease where there are ascertainable cardiac manifestations. Id. Under the January 12, 1998 revision, a 10 percent disability rating is warranted for rheumatic heart disease when continuous medication is required or where a workload of greater than seven METs (metabolic equivalents) but not greater than ten METs results in dyspnea, fatigue, angina, dizziness, or syncope. 38 C.F.R. § 4.104, Diagnostic Code 7000 (1999). A 30 percent evaluation requires either (1) that a workload of greater than five METs but not greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope; or (2) that there is evidence of cardiac hypertrophy or dilatation on EKG, echocardiogram, or X-ray. Id. A 60 percent evaluation is warranted when one of the following is present: (1) more than one episode of acute congestive heart failure in the past year; (2) a workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope; or (3) there is evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Id. A 100 percent disability rating is warranted during an active infection with valvular heart damage and for three months following cessation of therapy for the active infection. A total disability rating is also warranted when one of the following is present: (1) chronic congestive heart failure; (2) a workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or (3) there is evidence of left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note 2 (1999). Analysis Considering the veteran's rheumatic heart disease under the old rating criteria, it is noted that there is no evidence that the veteran has had a recurrence of rheumatic fever within three years of the date of his latest claim for an increased rating. Also, there is no persuasive evidence that the veteran currently has a diastolic murmur with characteristic EKG manifestations or a definitely enlarged heart. Although a holodiastolic murmur was heard during the October 1995 VA general medical examination, a diastolic murmur was not found on the four examinations subsequent to the date of his latest claim for an increased rating. On the October 1997 VA fee-basis examination, a diastolic murmur was not noted. Furthermore, a murmur, regardless of type, was not found during the physical examinations in April 1998 and June 1998, and only a systolic murmur was heard on the May 1998 VA examination. The veteran underwent two EKGs in 1998. One in February reportedly was normal and the exercise EKG in July 1998 was noted to be "possibly" positive; however, it was not noted to show cardiac enlargement or "characteristic manifestations." In fact, one of the observations reported was that there were no changes. Also, February 1998 X-rays did not reveal a definitely enlarged heart, and the May 1998 echocardiogram revealed a normal left ventricle and normal atrial and right ventricular dimensions. Thus, the preponderance of the competent evidence is against a rating greater than 10 percent under the old criteria. See 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997). That rating contemplates an identifiable valvular lesion; slight dyspnea, if any; and no cardiac enlargement. The veteran's rheumatic heart disease is shown to fall within those criteria. Furthermore, a higher disability rating under the new criteria is not warranted. On the July 1998 exercise treadmill test, the veteran was able to perform a workload of ten METs before the test was stopped due to shortness of breath and tightness/pain in the chest. A 30 percent rating is warranted when a workload of greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope. Such is not shown in this case. In addition, there is no persuasive evidence of cardiac hypertrophy or dilatation on EKG, echocardiogram, or X-ray. As previously noted, the February 1998 chest X-rays were normal, and the May 1998 echocardiogram revealed a normal left ventricle along with normal atrial and right ventricular dimensions. In sum, the preponderance of evidence is against a rating in excess of 10 percent under the revised criteria. See 38 C.F.R. § 4.104, Diagnostic Code 7000 (1999). Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4 (1999) whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, the Board finds no basis upon which to assign a higher disability evaluation for rheumatic heart disease. Extraschedular Consideration The Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is in order. That regulation provides that, in exceptional circumstances where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. Although the veteran has reported that he could no longer work laying carpet and he is receiving nonservice-connected disability pension benefits, he has significant nonservice- connected disabilities including arthritis, bipolar disorder, and Crohn's disease. The evidence in this does not show that the veteran's service-connected rheumatic heart disease, alone, causes any marked interference with employment or requires frequent periods of hospitalization that render impractical the use of the regular schedular standards. ORDER An evaluation in excess of 10 percent for rheumatic heart disease is denied. JANE E. SHARP Member, Board of Veterans' Appeals