Citation Nr: 0000351 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-00 077 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for pericarditis with residuals of myocarditis and history of ventricular hypertrophy, currently evaluated as 30 percent disabling. 2. Entitlement to service connection for coronary artery disease (CAD) with bypass grafting and hypertension on a direct basis, or as secondary to the service-connected disability of pericarditis with residuals of myocarditis with history of ventricular hypertrophy. 3. Entitlement to a temporary total rating (TTR) under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following hospitalization in March 1997. 4. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) due to service- connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from November 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1997 rating decision in which the RO denied a rating in excess of 30 percent for pericarditis with residuals of myocarditis and ventricular hypertrophy, denied service connection for CAD with bypass grafting and hypertension on a direct basis and as secondary to the service-connected pericarditis, denied a TTR based on treatment of a service-connected condition requiring convalescence, and denied a TDIU due to service connected disabilities. The veteran appealed and requested an RO hearing. Thereafter, the veteran canceled a hearing at the RO scheduled in February 1998. By rating decision of June 1998, the RO denied a claim of clear and unmistakable error (CUE) in the August 1997 rating decision. The veteran did not file a timely notice of disagreement (NOD) with respect to the June 1998 rating decision and the issue of CUE in the August 1997 rating decision is not before the Board for appellate consideration. The issues of entitlement to an increased rating for pericarditis with residuals of myocarditis and history of ventricular hypertrophy and entitlement to a TDIU will be addressed in the REMAND following the decision below. FINDINGS OF FACT 1. There is no competent medical evidence linking any current coronary artery disease with hypertension to military service, to reported continuity of post-service symptomatology, or to the service-connected pericarditis; the claim of entitlement to service connection for coronary artery disease with hypertension, on a direct basis or as secondary to the service-connected pericarditis, is not plausible. 2. The veteran's hospitalization in March 1997 was for treatment of a nonservice-connected condition. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for coronary artery disease with hypertension, on a direct basis or as secondary to the service-connected pericarditis, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.310 (1999). 2. Entitlement to a temporary total rating (TTR) under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following hospitalization in March 1997 is not warranted. 38 C.F.R. § 4.30 (1999); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection is also warranted where the evidence shows that a disability has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the veteran. King v. Brown, 5 Vet. App. 19, 21 (1993). The threshold question, however, is whether the veteran has met his initial burden of presenting a well grounded claim. If he has not, then the claim must fail and there is no further duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well grounded claim requires more than an allegation; the claimant must submit supporting medical evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). For a well grounded claim of service connection, there must be competent evidence of a current disability (a medical diagnosis), of inservice incurrence or aggravation of a disease or injury (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). In the veteran's case, service connection is in effect for pericarditis with residuals of myocarditis and ventricular hypertrophy by electrocardiogram, currently evaluated as 30 percent disabling. The service medical records reflect that on his pre-induction examination in September 1965, the veteran reported a medical history of high blood pressure. The military physician noted that the veteran had been diagnosed with hypertension in 1963. He was rejected for entry into service at that time. On re-evaluation in November 1965, it was noted that blood pressure readings on September 25, 1965, and October 1st and 4th, 1965, were normal. The veteran was accepted into service and entered active duty in November 1965. The veteran was hospitalized in service in May 1967 after being transferred from a private hospital with a diagnosis of pericarditis. Appellate review of the summary from Kings' Daughters' Hospital noted that the veteran had been temporarily rejected from military service in September 1965 after he was noted to have mild hypertension. After his transfer to the military hospital, recorded clinical data indicated that the veteran had been diagnosed with hypertension in 1965, but had not been on any medication for hypertension. The final diagnosis was recurrent pericarditis, etiology unknown. On medical board examination in October 1967, the veteran was found unfit for duty and discharged from service in January 1968. Post-service medical records reveal that the veteran was hospitalized in July 1977 at King' Daughters' Hospital after reporting a five week history of precordial pain and shortness of breath. He was diagnosed with hypertensive cardiovascular disease and possible recurrent pericardiac disease. Blood pressure was reported to be 150/100 at that time. The July 1977 hospital summary referenced a history of borderline hypertension ten years earlier when the veteran was initially rejected for military service. S.H. Carter, M.D., the veteran's private physician, indicated that the veteran was later accepted into service; in July 1977, the veteran was found to again have a mild to moderate level of elevation in his blood pressure. The final diagnosis on the hospital summary was essential hypertension and moderate obesity. In March 1998, the veteran was seen for a VA cardiovascular examination. The VA examiner was specifically asked to comment on whether there was any relationship between the veteran's service-connected pericarditis which first became apparent in service in 1967, and his coronary artery disease which developed in 1994 and ultimately required bypass surgery in March 1997. On examination, the veteran was noted to have a medical history which included coronary artery disease since 1994 when he suffered an inferior wall myocardial infraction and hypertension since 1965. Cardiac examination showed a regular rate and rhythm with no murmurs, gallops or rubs. The abdomen was soft and nontender with no masses and no hepatosplenomegaly. Electrocardiogram showed a normal sinus rhythm with a rate of 60. There was a possible, old inferior wall myocardial infarction evident, but otherwise the electrocardiogram was normal and did not show any evidence of left ventricular hypertrophy. The VA examiner specifically concluded that it was unlikely that the veteran's coronary artery disease was related to the idiopathic pericarditis that he developed in service in 1967; it was more likely related to his heavy smoking history, his diabetes, hypertension and hyperlipidemia. The veteran has not submitted any competent medical evidence to establish a nexus between any current CAD with hypertension and service or between his service-connected pericarditis and his CAD with hypertension. As noted above, the lay evidence in the form of statements from the veteran does not constitute probative evidence sufficient to connect any current disability with service or post-service symptoms. When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinion of a witness skilled in the particular science, art, or trade is needed to establish a well grounded claim. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The VA examiner specifically indicated that the veteran's CAD with hypertension was unrelated to his in-service pericarditis with residuals of myocarditis and history of left ventricular hypertrophy. Accordingly, as the veteran's having failed to present evidence of a plausible claim for entitlement to service connection for CAD with hypertension, either on a direct basis, on the basis of aggravation or as secondary to the service-connected pericarditis with residuals of myocarditis and history of ventricular hypertrophy, that claim must be denied as not well grounded. II. Temporary Total Rating The veteran filed a claim for a TTR based on treatment requiring convalescence. He was hospitalized for eight days in March 1997 for surgery consisting of 5 vessel bypass grafting. The surgery was necessitated by his CAD. Under the provisions of 38 C.F.R. § 4.30 (1999), a TTR may only be granted based on treatment of a service-connected disability. The hospitalization in March 1997 and subsequent convalescence were necessitated by his nonservice-connected CAD with hypertension. "[W]here the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or lack of entitlement under the law." Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Inasmuch as service connection is not in effect for CAD with hypertension, a TTR based on treatment for CAD with hypertension requiring convalescence is not available and the appeal on this issue is denied. ORDER 1. A well grounded claim not having been presented, entitlement to service connection for coronary artery disease with hypertension, on a direct basis, on the basis of aggravation or as secondary to the service-connected pericarditis with residuals of myocarditis and history of ventricular hypertrophy is denied. 2. Entitlement to a temporary total rating (TTR) under the provisions of 38 C.F.R. § 4.30 based on the need for convalescence following hospitalization in March 1997 is denied. REMAND Pericarditis with Residuals of Myocarditis and History of Ventricular Hypertrophy The veteran's pericarditis with residuals of myocarditis and history of ventricular hypertrophy by electrocardiogram has been evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7002. However, subsequent to filing his claim, the rating schedule for determining the disability evaluations to be assigned for cardiovascular disorders, including pericarditis, were changed, effective January 12, 1998. Where 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). In a June 1998 supplemental statement of the case (SSOC), the RO attempted to evaluate the veteran's pericarditis under both the old and new rating criteria. However, following a review of the entire claims folder, the Board finds that the clinical evidence currently of record is inadequate to rate the veteran's pericarditis under both the old and new rating criteria. Under the old rating criteria, Diagnostic Code 7002 provides that pericarditis is to be rated as rheumatic heart disease. 38 C.F.R. § 4.104, Diagnostic Code 7002 (as in effect prior to January 12, 1998). Under the provisions of Diagnostic Code 7000 pertaining to rheumatic heart disease, from the termination of an established service episode of [pericarditis], or its subsequent recurrence, with cardiac manifestations, during the episode or recurrence, for 3 years, or diastolic murmur with characteristic EKG manifestations or definitely enlarged heart, a 30 percent rating is assigned. 38 C.F.R. § 4.104, Diagnostic Code 7000 (as in effect prior to January 12, 1998). When the heart is 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, a 60 percent rating is warranted. Id. A 100 percent rating is assigned when there is definite enlargement of the heart confirmed by roentgenogram and clinically; dyspnea on slight exertion; rales, pretibial pitting at end of day or other definite signs of beginning congestive failure; more than sedentary employment is precluded. Id. Under the new rating criteria, 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 dilatation on electrocardiogram, echocardiogram, or x-ray, a 30 percent rating is warranted. 38 C.F.R. § 4.104, Diagnostic Code 7002 (1999). When pericarditis is productive of 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 60 percent rating is assigned. Id. When there is 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, a 100 percent rating is assigned. Id. Appellate review of the July 1997 and March 1998 VA examination reports, the Board notes that there are no findings reporting the results of exercise testing. At the time of the July 1997 examination, the veteran was still in cardiac rehabilitation and such testing was not likely to be undertaken for medical reasons; however, the March 1998 examination need not have been so limited and the exercise testing was still not conducted. Insofar as a significant portion of the new rating criteria is articulated in terms of findings from a laboratory determination of METs by exercise testing, further examination is warranted. In addition, while the VA examiner in March 1998 noted that the veteran denied angina and shortness of breath, there was no comment on the presence of dizziness, fatigue or syncope. Considering the absence of necessary clinical findings to evaluate the current severity of the veteran's pericarditis under both the old and new rating criteria for evaluating cardiovascular disorders, a remand is required. The VA examination requested below must also include a medical opinion as to whether the veteran's current symptoms are due to his nonservice-connected CAD with hypertension, or whether they are manifestations of his service-connected pericarditis with residuals of myocarditis and history of ventricular hypertrophy. See Note following 38 C.F.R. § 4.104, Diagnostic Code 7005 (1999). Appellate review of the claims folder also reveals that the veteran raised a claim for an increased rating for his service-connected cardiovascular disorder in 1985. Private medical records were received at the RO in November 1985 documenting ongoing treatment for cardiovascular symptoms. The RO did not undertake any adjudicative action after receipt of this medical evidence. As such, the Board construes the veteran's claim for an increased rating to have been in open status since 1985. On remand, the RO should consider the rating to be assigned from 1985. TDIU A TDIU may be assigned when, in the judgment of the rating agency, there is any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. §§ 4.15, 4.16 (1999). In determining whether an individual is unemployable by reason of service-connected disabilities, consideration must be given to the type of employment for which the veteran would be qualified. Such consideration would include education and occupational experience. Age may not be considered a factor. 38 C.F.R. § 3.341. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of a total disability rating. 38 C.F.R. § 4.19. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340. The veteran is service-connected for pericarditis with residuals of myocarditis and history of ventricular hypertrophy by electrocardiogram, rated 30 percent disabling under the provisions of Diagnostic Code 38 C.F.R. § 4.104, Diagnostic Code 7002 (1997). He claimed entitlement to a TDIU following bypass surgery in 1997 based on a contention that he would not be able to work due to service-connected disabilities. The veteran did not complete that part of the application for TDIU benefits (VA Form 21-8940) pertaining to his educational level or past work experience. However, at the time of his July 1997 VA examination, the veteran reported that he had just returned to work as a carpenter two weeks prior to the examination. At that time, he was working 30 hours per week doing light work while he was also participating in cardiac rehabilitation following his bypass surgery. On VA general medical examination in March 1998, the veteran indicated that he was working 4 1/2 days per week doing light duty. Against this background, the Board finds that further evidentiary development is needed. Specifically, the veteran must provide information regarding his educational level, past work experience, and current working conditions. With respect to the work he is currently doing as a carpenter, the veteran should provide the RO with a completed employment statement reflecting the number of hours he is working each week and his salary. Based on the foregoing, the issues of entitlement to an increased rating for pericarditis with residuals of myocarditis and history of ventricular hypertrophy and entitlement to a TDIU rating are REMANDED to the RO for the following development: 1. The RO should contact the veteran and ask him to provide information regarding his educational level, past work experience, and current working conditions. The veteran must submit a complete employment statement to the RO containing information on his current work schedule and salary. The completed employment statement should be associated with the claims folder. 2. The RO should also ask the veteran whether he has received any treatment for his heart condition since March 1998, the date of the last VA examination. Based on his response, the RO should obtain a copy of all treatment records from the identified source(s), and associate them with the claims folder. 3. Following the receipt of the aforementioned evidence, if any, the veteran should be accorded a comprehensive VA cardiovascular examination to determine the current severity of his pericarditis with residuals of myocarditis and history of ventricular hypertrophy, and to obtain information which will provide for its evaluation based on Court precedent, as well as under the new rating criteria for cardiovascular disorders. All indicated testing in this regard should be accomplished and all findings should be reported in detail. The complete claims folder, including a copy of this remand order, MUST be reviewed by the examiner. Following examination of the veteran and review of the claims folder, the physician should comment as to the following: (a) whether the veteran has had more than one episode of acute congestive heart failure in the past year due to his service connected heart disability; (b) based on exercise testing, whether a workload of greater than 3 METs (metabolic equivalent) but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope due to his service connected heart disability; (c) whether there is evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent due to his service connected heart disability; (d) whether the veteran's pericarditis is such that more than light manual labor is not feasible; (e) whether his service connected heart disease is such that more than light manual labor is precluded by heart enlargement, and whether his service connected heart disease results in severe dyspnea on exertion, elevation of systolic blood pressure, or arrhythmias. The VA examiner should also provide a medical opinion as to which cardiovascular condition (either the service-connected pericarditis with residuals of myocarditis and history of ventricular hypertrophy or the nonservice-connected CAD) is causing the veteran's current symptomatology. See Note after 38 C.F.R. § 4.104, Diagnostic Code 7005 (1999). If the examiner is unable to differentiate between the symptoms related to the service connected and nonservice connected heart disease, he/she should so indicate. The RO must ensure that each question posed here is answered by the examining physician. If it is not, corrective action MUST be taken by the RO. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the aforementioned development action has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 5. The RO should then re-adjudicate the veteran's claim for an increased rating for his service-connected pericarditis with residuals of myocarditis and history of ventricular hypertrophy on the merits, with consideration of both the old and new rating criteria for cardiovascular disorders. See Karnas, supra. 6. Thereafter, the RO should re- adjudicate the issue of entitlement to a TDIU. If the information provided by the veteran demonstrates that he is only working part-time, the RO should consider whether the veteran's current work status qualifies as marginal employment as set forth in 38 C.F.R. § 4.16 (1999). If any determination remains adverse to the veteran, the veteran and any representative should be provided with a SSOC and given the opportunity to respond within the applicable time. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified, but he has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this remand is to obtain additional records and medical information, and to comply with a precedent decision of the Court. No inference should be drawn regarding the final disposition of the veteran's claims as a result of this action. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for further 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. Iris S. Sherman Member, Board of Veterans' Appeals