Citation Nr: 22000541
Decision Date: 01/05/22 Archive Date: 01/05/22

DOCKET NO. 20-22 072
DATE: January 5, 2022

ORDER

From March 18, 2009, entitlement to an initial rating of 60 percent for postural orthostatic tachycardia syndrome (POTS) is granted.

Entitlement to service connection for supraventricular tachycardia (SVT), as secondary to POTS, is granted.

REMANDED

Entitlement to service connection for a broken foot, as secondary to POTS, is remanded.

Entitlement to service connection for a sprained wrist, as secondary to POTS, is remanded.

Entitlement to service connection for a dislocated elbow, as secondary to POTS, is remanded.

From March 18, 2009, entitlement to a rating in excess of 60 percent for POTS is remanded.

Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's POTS is most analogous to the criteria for diseases of the heart; from March 18, 2009, the Veteran's POTS more closely approximated at least left ventricular ejection fraction of 30 to 50 percent and onset of syncope and dizziness at greater than three but less than five METs.

2. The Veteran's SVT is proximately due to service-connected POTS.

CONCLUSIONS OF LAW

1. From March 18, 2009, the criteria for entitlement to an initial rating of 60 percent for POTS are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.310(b), 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.20, 4.27, 4.104, Diagnostic Code 7099-7011.

2. The criteria for entitlement to service connection for SVT, as secondary to POTS, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from July 2006 to November 2006 and from October 2008 to March 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

In April 2021, the Veteran testified at a virtual hearing before the undersigned.

Today, the Board is also issuing a decision addressing an appeal by the Veteran under VA's modernized appeals system (AMA). The Board believes that it will be easier to understand the reasons and bases in these decisions if this decision is read first and the AMA decision is read last.

The issues of entitlement to secondary service connection for SVT, a broken foot, sprained wrist, and dislocated elbow due to POTS-related falls, as well as entitlement to a TDIU, are reasonably raised by the record as part of the Veteran's appeal seeking an increased rating. See Morgan v. Wilkie, 31 Vet. App. 162. 164 (2019) (VA's duty to maximize benefits may include exploring schedular tools such as secondary service connection, rating by analogy, and TDIU). Although the Veteran explicitly appealed the issue of entitlement to a TDIU under the AMA, the issue of entitlement to a TDIU also independently arises as an aspect of this legacy appeal. Thus, the Board will also address that issue here.

The Board has bifurcated the issue of entitlement to an increased initial rating for POTS so as to afford the Veteran a favorable decision on part of her appeal without delay. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion).

1. From March 18, 2009, an initial rating of 60 percent for POTS is granted.

The Veteran asserts that she is entitled to a total initial rating for POTS and that her disability should be rated by analogy to major epileptic seizures.

The Veteran is in receipt of an initial noncompensable rating for POTS pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7099-7011 (unlisted cardiovascular condition rated by analogy to sustained ventricular arrythmias). The period on appeal is from March 18, 2009, the effective date of service connection.

Selection of Appropriate Rating Criteria

POTS is not listed in the VA rating schedule. Unlisted conditions are rated by analogy to closely related diseases or injuries in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20; see also 38 C.F.R. § 4.27.

POTS is a condition that affects circulation. It is a form of orthostatic intolerance, the development of symptoms that come on when standing up from a reclining position, and that may be relieved by sitting or lying back down. The primary symptom of an orthostatic intolerance is lightheadedness, fainting, and an uncomfortable, rapid increase in heartbeat. See October 2020 Heart Conditions Examination Report at 3.

The evidence shows that the Veteran's POTS is manifested by symptoms including syncope (fainting) due to low blood pressure, which is consistent with the description provided by the October 2020 examiner. The Veteran also reported a progression of her disability and instances where actual seizures occurred. See, e.g., Legacy Hearing Transcript at 6.

The mechanism of action of POTS involves a drop in blood pressure. Thus, the Board will first explore the cardiovascular rating criteria set forth in 38 C.F.R. § 4.104. These criteria were amended during the pendency of the appeal, and thus the Board will consider both the pre-amendment and post-amendment criteria, as applicable.

Conditions of the arteries and veins are listed at 38 C.F.R. § 4.104, Diagnostic Codes 7101 through 7124. While there is substantial overlap between the anatomical localization of these conditions and POTS, the functions that are affected and the relevant symptomatology differ substantially. In this regard, none of the listed conditions involve syncope, the Veteran's dominant symptom. The criteria for rating these conditions are not a good match for POTS.

Diseases of the heart are listed at 38 C.F.R. § 4.104, Diagnostic Codes 7000 through 7020. There is overlap between the anatomical localization of these conditions and POTS, although perhaps less than conditions of the arteries and veins. Moreover, the majority of these conditions are rated by employing substantially similar criteria; the post-amendment rating criteria is referred to as the "General Rating Formula for the Heart." These general rating criteria are based on what metabolic workload results in heart failure symptoms such as syncope, dizziness, angina, fatigue, and dyspnea. These criteria encompass the Veteran's primary symptoms of lightheadedness and syncope. Moreover, the Veteran is generally restricted from activities as a result of her POTS, which matches the functional effects of these criteria. The criteria for rating these criteria are a good match for POTS.

The Veteran argues that the most appropriate criteria are those used in rating epilepsy, as the Veteran's episodes of syncope are equivalent to a major seizure and as POTS is a neurological condition. See, e.g., Legacy Hearing Transcript at 2-3.

The rating criteria for neurological conditions and convulsive disorders are set forth at 38 C.F.R. § 4.121-§ 4.124a. 38 C.F.R. § 4.121 provides that to warrant a rating for epilepsy, seizures must be witnessed or verified at some time by a physician. However, lay testimony may be admitted as to the frequency of seizures. 38 C.F.R. § 4.122 explains how to characterize major and minor seizures. Epilepsy is rated pursuant to a general formula based on the frequency of major and minor seizures.

Here, there is some overlap between the anatomical localizations of POTS and neurological and convulsive disorders. In this regard, the Veteran's POTS has alternatively been diagnosed as vasovagal syncope. See, e.g., August 2015 Appellate Brief and Attachments (referencing Dr. M.C. opinion). This would relate to the vagus nerve and the neurological system in general. The Board will thus consider whether the neurological and convulsive disorders are analogous.

Paralysis of the vagus nerve is rated under Diagnostic Code 8210, which allows a maximum schedular 50 percent rating for complete paralysis of the vagus nerve.

Narcolepsy is rated under Diagnostic Code 8108 and directs that the condition be rated as petit mal epilepsy. A medical dictionary defines narcolepsy as "recurrent, uncontrollable brief episodes of sleep, often associated with hypnagogic or hypnopompic hallucinations, cataplexy, and sleep paralysis." Dorland's Illustrated Medical Dictionary, 31st edition (2007), 1251.

Petit mal seizures are rated under Diagnostic Code 8911, which directs that the condition be rated under the General Rating Formula for Minor Seizures.

Grand mal seizures are rated under Diagnostic Code 8910, which directs that the condition be rated under the General Rating Formula for Major Seizures.

The General Rating Formula for Major and Minor Seizures notes that a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head or sudden jerking movements of the arms, trunk or head or sudden loss of postural control. The rating assigned is based on the frequency of major or minor seizures.

While the Veteran argues that her episodes should be rated as major seizures because she loses consciousness, the Board observes that narcolepsy also involves the loss of consciousness and the rating schedule directs that condition be rated as minor seizures. The Veteran's episodes of syncope also involve a brief loss of consciousness, which is noted as consistent with minor seizures. In contrast, major seizures involve generalized tonic-clonic convulsions. Of all the listed neurological and convulsive disorders, the Veteran's POTS is most closely analogous to narcolepsy, based on the duration and nature of episodes of syncope. Moreover, the criteria for rating narcolepsy involve brief episodes of unconsciousness, which is the key symptom of the Veteran's POTS. The criteria for narcolepsy are therefore a good match for POTS.

Thus, the question comes down to whether the most analogous rating criteria is the General Rating Formula for Disease of the Heart (or the pre-amendment equivalent) or the General Rating Formula for Minor Seizures. Both criteria capture the key aspect of the Veteran's disability and involve overlap with the anatomical systems involved. However, the criteria for the heart also include lightheadedness, while the criteria for narcolepsy do not. Moreover, and as discussed below, a 60 percent rating is warranted based employing criteria for the heart throughout the appeal. In contrast, the Veteran testified to at least three episodes per month at minimum over the appeal, which lies between the 20 percent and 40 percent criteria for minor seizures. As the rating criteria for the heart are slightly more analogous and afford the Veteran a higher rating, the Board will employ those criteria and thus will continue to rate the Veteran's disability under Diagnostic Code 7099-7011.

Description of Criteria Under 38 C.F.R. § 4.104

As the rating criteria under 38 C.F.R. § 4.104 were amended during the appeal, the Board will apply the pre-amendment criteria prior to the date of amendment and the more favorable of pre- or post-amendment criteria after the date of amendment. Here, the pre-amendment criteria are most favorable and thus the Board will employ these throughout the appeal.

Under the pre-amendment version of Diagnostic Code 7011 (and most other codes rating heart conditions) a 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required. A 30 percent rating is warranted where 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 60 percent rating is warranted for 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 100 percent rating is warranted for 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.

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. 38 C.F.R. § 4.104, Note (2). 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. Id.

For the purposes of a 60 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of 30 to 50 percent. Otero-Castro v. Principi, 16 Vet. App. 375, 382 (2002). Additionally, the phrase "30 to 50 percent" means 30 percent through 50 percent. Id. at 380.

For the purposes of a 100 percent evaluation, the rating criteria do not require a separate showing of left ventricular dysfunction in addition to an ejection fraction of less than 30 percent. See id. at 382.

Evaluation of POTS Under the Selected Rating Criteria

Initially, the Board observes that the June 2018 Board decision awarded secondary service connection based on aggravation pursuant to 38 C.F.R. § 3.310(b), which directs the rater to deduct the baseline level of symptomatology from the post-aggravation level of symptomatology. The August 2018 rating decision determined that the baseline level of POTS symptomatology was zero percent. The Board adopts this favorable finding, as it is not clearly erroneous.

The October 2020 VA-contracted examiner diagnosed POTS, mitral valve prolapse, and SVT. The examiner noted medication was required for POTS. The examiner noted mitral valve prolapse had a different etiology than POTS. The examiner noted a November 2009 echocardiogram showed 50 percent left ventricular ejection fraction with a normal Holter monitor test in April 2014.

The examiner stated that interview based METS testing showed onset of dizziness and syncope at 1-3 METs, but this was not solely due to the Veteran's claimed cardiac conditions. The examiner explained that the METs level solely due to the Veteran's claimed cardiac conditions was >3-5 METs. The examiner also noted that the most objective reflection of the Veteran's current cardiac status was left ventricular ejection fraction.

Although the onset of fatigue and syncope at 1-3 METs is consistent with a 100 percent rating, the examiner explained that this was partially due to nonservice-connected etiologies. As the examiner was able to differentiate service-connected and nonservice-connected impairment, the Board will base its rating solely on impairment related to service. Cf. Mittleider v. West, 11 Vet. App. 181 (1998). The examiner explained that onset of symptoms between >3-5 METs was attributable to the Veteran's service-connected POTS, which is consistent with a 60 percent rating. Moreover, the examiner's explanation that the Veteran's left ventricular ejection fraction is the "most objective" reflection of current cardiac status also supports a 60 percent rating, although the Board has not limited its consideration to objective evidence.

The echocardiogram supporting a 60 percent rating was recorded in November 2009, which supports an initial 60 percent rating. This is corroborated by the symptoms described by the November 2009 VA-contracted examiner, who noted symptoms including dizziness and syncope and inability to vacuum, climb stairs, take out the trash, walk, shop, and push a lawnmower. This is consistent with the ability to perform some, but not all, of the activities listed on the examination report as consistent with >3-5 METs, and thus also supports a 60 percent rating. As this November 2009 examiner did not differentiate etiology of impairment, the Board will attribute all the symptoms noted in 2009 to the Veteran's service-connected disability. See Mittleider, supra. Thus, an initial rating of 60 percent is warranted throughout the appeal.

The Board acknowledges that the Veteran reported a progression in symptoms over the appeal. However, this is consistent with progression within the 60 percent rating band during the appeal; moreover, the total level of impairment noted in 2009 is consistent with a 60 percent rating, less than the total level of impairment in 2020, although only the 2020 examiner differentiated the etiology of impairment. Although the Board could order a retrospective opinion so as to differentiate the service-connected and nonservice-connected symptoms observed in 2009, the present record supports the award of an initial 60 percent rating and the Board will not remand this matter solely to develop negative evidence.

The issue of entitlement to a rating in excess of 60 percent for POTS is addressed in the remand section below.

2. Entitlement to service connection for SVT, as secondary to POTS, is granted.

Although not raised by the Veteran, the issue of entitlement to secondary service connection for SVT is raised by the record and thus is part and parcel of the increased rating claim on appeal.

Secondary service connection may be granted for a disability that is proximately due to or aggravated by a service-connected disability. 38 U.S.C. § 1110, 38 C.F.R. § 3.310.

The October 2020 examiner noted a diagnosis of SVT and explained that SVT is directly due to or related to POTS as this is frequently seen as a complication. See October 2020 Examination Report at 16. Accordingly, the criteria for secondary service connection for SVT are met.

The AOJ will issue the rating decision assigning an initial rating for SVT and an effective date of service connection. If the Veteran disagrees with that decision, she may seek review of that decision by filing the appropriate VA form.

REASONS FOR REMAND

3. Entitlement to service connection for a broken foot, as secondary to POTS, is remanded.

4. Entitlement to service connection for a sprained wrist, as secondary to POTS, is remanded.

5. Entitlement to service connection for a dislocated elbow, as secondary to POTS, is remanded.

At the Board hearing, the Veteran reported sustaining injuries due to POTS-related falls including a sprained wrist, broken foot, and dislocated elbow. See Legacy Hearing Transcript at 8-9. These issues are an aspect of the increased rating claim on appeal. The Board observes that even if these injuries have resolved, a current disability exists even if present over only a portion of the period on appeal.

On remand, the Veteran's complete VA treatment records and any outstanding relevant private treatment records relating to these injuries should be secured, and the Veteran should then be afforded examinations.

6. Entitlement to a TDIU is remanded.

Remand is necessary to correct a pre-decisional duty to assist error and conduct additional development. In this regard, the Veteran submitted a completed VA Form 21-4192 with respect to the two weeks of paralegal employment in April and May 2017. See July 2017 VA Form 21-4192; see also June 2017 VA Form 21-8940.

However, a work history that she completed in connection with a claim for Social Security Administration (SSA) disability benefits shows additional post-military employment experience from October 2011 to July 2012. See Medical Treatment Records Furnished by SSA (Received July 17, 2017; Work History). Furthermore, the Veteran reported that she worked as a paralegal in 2011 and 2012 until her son was born. See February 2021 Mental Disorders Disability Benefits Questionnaire (DBQ) at 5.

Moreover, evidence generated by the VA after the issuance of the Statement of the Case indicates that the Veteran is owner of a brewing company, although not currently working. See October 2020 Heart Conditions DBQ at 14.

On remand, the AOJ should develop the circumstances of the Veteran's post-military employment, to include her former employment from October 2011 to July 2012 and any self-employment with her brewing company.

7. From March 18, 2009, entitlement to a rating in excess of 60 percent for POTS is remanded.

Action on this issue is deferred pending completion of the development noted above.

The matter is REMANDED for the following action:

1. Secure the Veteran's complete VA treatment records.

2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records, to include any outstanding records documenting her sprained wrist, broken foot, and dislocated elbow due to POTS-related falls.

3. Develop the circumstances of the Veteran's post-military employment, to include her former employment from October 2011 to July 2012 (see Medical Treatment Records Furnished by SSA (Received July 17, 2017; Work History) and any self-employment with her brewing company.

4. After completing directives #1 and #2, the Veteran should be afforded an examination as to the nature and etiology of her reported sprained wrist. The claims file should be available to the examiner. Any necessary testing should be performed.

The examiner should address the following:

(a) Please diagnose any current wrist disability. For VA purposes, a current disability includes a disability or functional impairment present at any time since March 18, 2009, even if subsequently resolved. Thus, this would include a sprained wrist due to a fall, even if that sprain has resolved without residuals.

(b) For each disability or functional impairment identified in subpart (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) such disability or impairment is proximately due to a fall or syncope associated with the Veteran's POTS.

(c) For each disability or functional impairment identified in subpart (a), please opine as to whether it is at least as likely as not (50 percent or greater probability) such disability or impairment has been aggravated (worsened beyond natural progression) by a fall or syncope associated with the Veteran's POTS.

In addressing subparts (b) and (c) of this question, the examiner should accept as true the Veteran's lay statements as to the history of any fall-related injury.

(d) Please state whether the Veteran's reported history of any fall-related injury is medically consistent with examination findings.

A complete rationale must be provided for all opinions expressed. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case (e.g., the limits of medical knowledge, the limits of the examiner's own knowledge, additional information required, etc.).

5. After completing directives #1 and #2, the Veteran should be afforded an examination as to the nature and etiology of her reported broken foot. The claims file should be available to the examiner. Any necessary testing should be performed.

The examiner should address the following:

(a) Please diagnose any current foot disability. For VA purposes, a current disability includes a disability or functional impairment present at any time since March 18, 2009, even if subsequently resolved. Thus, this would include a broken foot due to a fall, even if the fracture resolved without residuals.

In addressing subparts (b) and (c) of this question, the examiner should accept as true the Veteran's lay statements as to the history of any fall-related injury.

(d) Please state whether the Veteran's reported history of any fall-related injury is medically consistent with examination findings.

6. After completing directives #1 and #2, the Veteran should be afforded an examination as to the nature and etiology of her reported dislocated elbow. The claims file should be available to the examiner. Any necessary testing should be performed.

The examiner should address the following:

(a) Please diagnose any current elbow disability. For VA purposes, a current disability includes a disability or functional impairment present at any time since March 18, 2009, even if subsequently resolved. Thus, this would include a dislocated elbow due to a fall, even if the dislocation resolved without residuals.

In addressing subparts (b) and (c) of this question, the examiner should accept as true the Veteran's lay statements as to the history of any fall-related injury.

(d) Please state whether the Veteran's reported history of any fall- or syncope-related injury is medically consistent with examination findings.

S. BUSH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board D.M. Badaczewski, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.