Citation Nr: 9902368 Decision Date: 01/28/99 Archive Date: 02/04/99 DOCKET NO. 96-03 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an evaluation for a systolic murmur with aortic valvular disease in excess of 10 percent from August 16, 1989 to October 8, 1991. 2. Entitlement to an increased evaluation for a systolic murmur with aortic valvular disease, currently evaluated at 30 percent. REPRESENTATION Appellant represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD R. M. Panarella, Associate Counsel INTRODUCTION The veteran served on active duty from September 1951 to August 1953. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the April 1994 and July 1995 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Sioux Falls, South Dakota (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran’s appeal has been obtained. 2. Between August 16, 1989 and October 8, 1991, the veteran’s heart disease was characteristic of elevated systolic blood pressure. 3. The veteran’s heart disease is currently productive of elevated systolic blood pressure. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation of 60 percent for a systolic murmur with aortic valvular disease between August 16, 1989 and October 8, 1991 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.104, Diagnostic Code 7000 (1997). 2. The schedular criteria for an evaluation of 60 percent for a systolic murmur with aortic valvular disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.104, Diagnostic Code 7000 (1997); 38 C.F.R. § 4.104, Diagnostic Code 7000 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A veteran who submits a claim for benefits under laws administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991). An allegation that a service-connected disability has become more severe is sufficient to establish a well-grounded claim for an increased rating. See Caffrey v. Brown, 6 Vet.App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Accordingly, the Board finds that the veteran’s claims for increased evaluations are well grounded. Once a veteran has presented a well-grounded claim, the VA has a duty to assist him in developing facts that are pertinent to the claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that all relevant facts have been properly developed, and that all evidence necessary for an equitable resolution of the issues on appeal has been obtained. Therefore, no further assistance to the veteran with the development of the evidence is required. Disability ratings are determined by evaluating the extent to which the veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Ratings Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1998). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). In March 1994, the Board granted service connection for a heart disability described as a systolic murmur with aortic valvular disease. The Board made this determination based upon service medical records which showed that the veteran developed a systolic heart murmur in service and was diagnosed with ventricular septal defect. Subsequent echocardiograms performed in 1984 and 1989 disclosed aortic valve sclerosis, calcific aortic stenosis, and aortic insufficiency. The RO subsequently issued a rating decision in April 1994 assigning a 10 percent disability evaluation from August 16, 1989, a 30 percent disability evaluation from October 9, 1991, and a 60 percent disability evaluation from March 7, 1994. A rating decision later that month assigned the veteran a temporary 100 percent evaluation from June 1, 1994 to June 1, 1995, and a 30 percent evaluation thereafter. I. An evaluation in excess of 10 percent from August 16, 1989 to October 8, 1991. During the pendency of this appeal, the criteria for evaluating cardiovascular disabilities were changed and the new regulations became effective on January 12, 1998. See 62 Fed. Reg. 65207 (1997). When 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). However, the new regulations cannot be applied retroactively and the effective date is 30 days after the date of publication in the Federal Register. Rhodan v. West, No. 96-1080 (U.S. Vet. App. Dec. 1, 1998). Therefore, the Board will evaluate the veteran’s claim for an evaluation in excess of 10 percent from August 16, 1989 to October 8, 1991 solely under the former cardiovascular criteria. The veteran’s heart disability had been awarded a 10 percent schedular evaluation pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997). Under the rating schedule, valvular heart disease is rated at 10 percent with identifiable valvular lesion, slight, if any dyspnea, the heart not enlarged; following established active rheumatic heart disease. A 30 percent evaluation requires from the termination of an established service episode of rheumatic fever, or its subsequent recurrence, with cardiac manifestations, during the episode or recurrence, for three years, or diastolic murmur with characteristic EKG manifestations or definitely enlarged heart. A 60 percent evaluation is warranted 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. In January 1984, an echocardiogram was performed to evaluate the veteran’s heart murmur. Otherwise normal, it found aortic valve sclerosis, probably hemodynamically insignificant. A September 1989 letter from Thomas J. Huber, M.D. stated that he had treated the veteran for several years for a loud, harsh holosystolic murmur which was otherwise asymptomatic. In May 1989, he reevaluated the veteran’s heart murmur and an echocardiogram found calcific aortic valve with nodular calcification, mild aortic insufficiency, and aortic stenosis. An October 1993 letter from Dr. Huber stated that he had last performed a physical examination of the veteran in November 1988. The veteran was apparently asymptomatic and tolerating his valvular heart disease well. In a VA Form 9 dated January 1991, the veteran stated that he was on medication to control his high blood pressure and that he had taken early retirement due to his heart disability. The veteran appeared at a hearing before the RO in April 1991. He testified that he had returned to work, at a less stressful occupation, because he could not acquire health insurance due to his heart condition. He identified his cardiac symptoms as a murmur, increased blood pressure, and enlargement of the heart. VA Hospital records from October 1991 indicate that the veteran was admitted for cardiac observation. The veteran reported dizziness upon standing and shortness of breath with exertion. Upon examination, blood pressure was recorded at 190/88, and a Grade III/VI systolic ejection murmur with radiation into the carotids, a Grade II/VI diastolic murmur across the precordium, and a Grade II/VI holosystolic murmur at the apex were observed. An echocardiogram demonstrated left ventricular ejection fraction of 65 percent, mild aortic stenosis with a gradient of 20 mHg across the valve and an area of 1.2 cm. squared, moderate to moderately severe aortic insufficiency, and mild to moderate left ventricular hypertrophy. Cardiac catheterization was not recommended at the time because these findings were an improvement from a previous echocardiogram. Based upon the above findings, the Board concludes that the evidence supports an evaluation of 60 percent for a systolic murmur with aortic valvular disease for the time period of August 16, 1989 to October 8, 1991. The medical evidence reflects that the veteran was suffering from elevated systolic blood pressure during his hospital admission in October 1991. There is no medical evidence to the contrary during the two year time period under consideration. Moreover, the Board finds the veteran’s testimony to be credible regarding his hypertension and his need to take medication to control the disorder. Therefore, the record shows the increased severity necessary for a 60 percent evaluation and the veteran’s claim must be granted. II. An evaluation in excess of 30 percent. The RO has awarded the veteran’s heart disability a 30 percent schedular evaluation pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7000 (1997). Under this rating schedule, a 30 percent evaluation requires from the termination of an established service episode of rheumatic fever, or its subsequent recurrence, with cardiac manifestations, during the episode or recurrence, for three years, or diastolic murmur with characteristic EKG manifestations or definitely enlarged heart. A 60 percent evaluation is warranted 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. Beginning January 12, 1998, cardiovascular disabilities are to be rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7000 (1998). Under these criteria, valvular heart disease is rated at 30 percent 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 dilation on electrocardiogram, echocardiogram, or x-ray. A rating of 60 percent requires 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. When 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). Therefore, the Board will evaluate the veteran’s claim for an evaluation in excess of 30 percent under the former and the revised cardiovascular criteria. In March 1994, the veteran was admitted to the VA Hospital with complaints of increasing fatigue and shortness of breath over the past several months. Blood pressure was recorded at 190/80. Upon cardiac examination, the veteran was found to have a prolonged carotid upstroke, normal respirations, hyperdynamic precordium with a visible and palpable PMI and thrill, Grade IV/VI systolic murmur, Grade II to III/IV diastolic murmur heard along the left sternal border, and delayed peripheral pulses. Following an echocardiogram, the veteran was diagnosed with aortic valvular disease with mixed aortic stenosis and aortic insufficiency, mildly dilated left ventricle, and hypertension. Later that month, the veteran underwent aortic valve replacement. He was discharged in stable condition and placed on Coumadin therapy. The veteran was afforded a VA examination in July 1995. The veteran reported a history of lightheadedness and shortness of breath with exertion beginning in 1989. However, he reported a decrease in symptoms since the aortic valve replacement in 1994. He continued with medication for hypertension and anticoagulation. Upon cardiac examination, the examiner found a normal S1 and S2, a systolic murmur of Grade II/VI and a valvular click. The x-ray report of the chest showed a normal sized heart and a slightly tortuous thoracic aorta. The examiner assessed the veteran with mild symptoms of shortness of breath upon exertion and decreased exercise tolerance. In the veteran’s notice of disagreement dated November 1995 and VA Form 9 dated December 1995, he stated that he continued to have high blood pressure and an irregular heartbeat. VA outpatient records from 1995 and 1996 indicate that the veteran continued to be followed for his high blood pressure and heart disease. Private medical records from 1994 to 1997 indicate that the veteran continued to take Coumadin and blood pressure medication. He was seen in November 1995 for his heart disease and blood pressure and assessed with St. Jude aortic valve and hypertension. Private medical records indicate that the veteran was admitted to the hospital for prostate surgery in October 1996. During a cardiac consultation, the veteran reported that, before his valve replacement, his only symptoms were easy fatigue and exertional dyspnea. Following the replacement, he had not had to limit his activities in any way due to cardiac symptoms. He did report that he took hypertension medication and that he was managed on Coumadin therapy. A chest x-ray performed at the time showed a heart size in the upper limits of normal. An echocardiogram found left atrial dilation, concentric left ventricular hypertrophy, normal left ventricular systolic function, diastolic dysfunction, mild mitral regurgitation, and residual 35 mm. gradient across the aortic valve prosthesis. Following examination and an EKG, the veteran was assessed with mild residual aortic stenosis and hypertension. The veteran underwent another VA examination in January 1997. The veteran reported that, following his valve replacement, he had not experienced chest pain, shortness of breath, exercise intolerance, orthopnea, paroxysmal nocturnal dyspnea, or pedal edema. He continued to complain of hypertension that had been difficult to control with medication. Upon examination, coronary was at a regular rate and rhythm with an occasional premature beat and a Grade II/VI short systolic murmur was heard throughout the precordium and radiating into the carotids. The veteran was assessed with status post aortic valve replacement and severe hypertension. During a VA examination in December 1997, the veteran reported no postoperative complications from his valve replacement or other cardiac symptoms. He said that he rode a stationery bicycle and walked outdoors for exercise. He continued to complain of significant systolic hypertension. During the examination, blood pressure was reported at 180/85, 170/86, and 190/86. The examiner found a Grade II/VI systolic ejection murmur with a prominently loud S2 at A2, a Grade III/VI systolic ejection murmur with a loud S2 at the P2 region, a Grade I-II/VI midsystolic murmur at the base of the heart, and a Grade II/VI systolic murmur at the apex with prominent S2 sounds. The veteran was assessed with aortic valve disease resulting in clinically significant aortic valve insufficiency and stenosis problems, status post aortic valve replacement, and systolic hypertension. A follow-up VA examination in November 1998 found aerobic capacity of 7 to 7.5 METs with left ventricular ischemia on the lateral and inferior leads during an exercise treadmill study. Based upon the above findings, the Board concludes that the evidence supports an evaluation of 60 percent for a systolic murmur with aortic valvular disease under the former criteria for cardiovascular disorders. A review of the pertinent medical evidence discloses that the veteran has suffered from elevated systolic blood pressure for several years. He has consistently received treatment and medication for this condition; however, the medication has not been fully successful in controlling the hypertension. Blood pressure recordings noted in the evidence of record all indicate high systolic blood pressure. The veteran has been assessed with hypertension, severe hypertension, or systolic hypertension during most of his private and VA medical examinations. Therefore, the record shows the increased severity necessary for the next higher evaluation and the veteran’s claim must be granted. The potential application of various provisions of Title 38 of the Code of Federal Regulations (1998) have been considered whether or not they were raised by the veteran as required by the holding of the United States Court of Veterans Appeals in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (1998). The Board, as did the RO, finds that the evidence of record does not present such “an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards.” 38 C.F.R. § 3.321(b)(1) (1998). In this regard, the Board finds that there has been no showing by the veteran that his disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (1998)are not met. See Bagwell v. Brown, 9 Vet.App. 337 (1996); Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). ORDER Subject to the provisions governing the award of monetary benefits, an evaluation of 60 percent from August 16, 1989 to October 8, 1991 for a systolic murmur with aortic valvular disease is granted. Subject to the provisions governing the award of monetary benefits, an evaluation of 60 percent for a systolic murmur with aortic valvular disease is granted. WARREN W. RICE, JR. Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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, 102 Stat. 4105, 4122 (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. - 2 -