Citation Nr: 0734345 Decision Date: 11/01/07 Archive Date: 11/19/07 DOCKET NO. 05-09 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation in excess of 60 percent for myocardial infarction (Wolff-White Parkinson syndrome). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active service from June 1978 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. On the VA Form 9 dated in March 2005, the veteran requested a hearing before a VA decision review officer. The RO subsequently scheduled a hearing for April 2007. The veteran failed to appear for that hearing. The October 2004 rating decision denied an increased rating and continued the 30 percent evaluation for Wolff-Parkinson- White syndrome. Subsequently, an April 2007 Supplemental Statement of the Case (SSOC) granted an increase to 60 percent, effective July 30, 2004. As the award is not a complete grant of benefits, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT Myocardial infarction has resulted in a workload of no less than 10 METs; it does not result in left ventricular dysfunction with an ejection fraction of less than 30 percent. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 60 percent for myocardial infarction have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2007); 38 C.F.R. § 4.104, Diagnostic Code 7005 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2007). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A. Duty to Notify In an August 2004 letter, the RO notified the veteran of the evidence required to substantiate the claim for an increased rating. This letter explained VA's duty to assist the veteran with the development of his claim and specified what types of evidence VA would be responsible for obtaining and what type of evidence VA would assist the veteran in obtaining. The veteran was advised that he should submit any relevant medical records in his possession. This notice complied with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. A March 2006 provided the veteran with notice of how effective dates and disability ratings are determined. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). B. Duty to Assist The RO made reasonable and appropriate efforts to obtain the relevant records identified by the veteran. The veteran has also been afforded a VA examination. In a September 2007 brief, the veteran's representative argued that a new VA examination is necessary based upon the amount of time that has elapsed since the last examination. The veteran underwent a VA examination in 2004. The duty to assist does not require that a claim be remanded solely because of the passage of time since otherwise adequate VA examinations were conducted. VAOPGCPREC 11-95 (April 7, 1995). There is no objective evidence indicating that there has been a material change in the severity of the veteran's disability since the 2004 VA examination. The Board therefore concludes that the 2004 VA examination is adequate for rating purposes. Under these circumstances, the Board finds the requirements of the duty to assist have been satisfied, that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran. II. Analysis of Claim Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). In other cases, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in the case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The veteran's disability has been rated according to rating criteria set forth in Diagnostic Code (DC) 7005. 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 when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or x-ray. A 60 percent evaluation is warranted when there is more than one episode of acute congestive heart failure in the past year; or; when a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for chronic congestive heart failure, or; when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness of syncope, or; when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005 (2007). 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 is required for evaluation, and a laboratory determination by exercise testing cannot be done for medical reasons, an estimation by the examiner of the METs level may be used. 38 C.F.R. § 4.104, Note 2. After a review of the evidence, the Board finds that there is a preponderance of the evidence against the claim for a rating in excess of 60 percent. The veteran had a VA examination in September 2004. A report of that examination reflects that the veteran that the veteran reported that Wolff-Parkinson-White Syndrome was first diagnosed while in basis training. The veteran reported that he would notice during PT runs that he had intermittent fast heart rate with light-headedness. He fainted once. The veteran reported that the diagnosis was made in 1979. He was hospitalized on one occasion. His symptoms would occur off and on over time. He reported that he was placed on digoxin and nitroglycerin tablets. His episodes at that time primarily occurred during exercise, and he would become very diaphoretic. The veteran reported that he was hospitalized on many occasions. He underwent apparent laser ablation in 1992. The veteran reported that he did well for two months after his surgery and then had another episode. He reported that his episodes were much less frequent and did not last long. They were not associated with dizziness, light-headedness or diaphoresis. He reported that he had three to four episodes in the year preceding the examination and a total of 15 to 20 since the ablation surgery. He reported that he had an occurrence one week prior to the examination. The veteran reported that his condition affected him vocationally. The examiner's diagnoses included: status post laser ablation for Wolff-Parkinson-White syndrome and palpitations with unilateral PVC's. The examiner estimated that the veteran's METs were 10 or greater. A report of a myocardial perfusion study conducted in September 2005 reflects that the veteran achieved a workload of 12.4 METs. The examiner's impression was: left ventricular chamber size mildly dilated; no evidence of regional myocardial ischemia; left ventricular ejection fraction borderline reduced at 51 percent; and slight relative hypokinesis of the lower interventricular septum. VA medical records dated from 2005 to 2006 reflect outpatient cardiology treatment. These records do not reflect any findings that approximate the criteria for an increased evaluation under DC 7005. As noted above, under DC 7005, entitlement to the highest evaluation of 100 percent is established when any of the following criteria are satisfied: (1) chronic congestive heart failure, or; (2) workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness of syncope; or (3) when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7005 (2007). Based on the foregoing finding, the Board concludes that the criteria for a rating in excess of 60 percent for myocardial infarction have not been met. The evidence is not in relative equipoise; therefore, the veteran may not be afforded the benefit of the doubt in the resolution of this claim. Rather, as the preponderance of the evidence is against the claim, it must be denied. Finally, the evidence does not reflect that the veteran's myocardial infarction has caused marked interference with employment (i.e., beyond that already contemplated in the assigned evaluation), or necessitated any frequent periods of hospitalization, such that application of the regular scheduler standards is rendered impracticable. Hence, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. 3.321(b)(1) (2007) for the assignment of an extraschedular evaluation. ORDER A rating in excess of 60 percent for myocardial infarction (Wolff-White Parkinson syndrome) is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs