Drosky v. BrownDrosky v. Brown
The appellant, Vietnam-era veteran Raymond S. Drosky, appeals a February 7,1996, Board of Veterans’ Appeals (BVA or Board) decision denying (1) an increased rating for service-connected pericarditis, currently rated as 10% disabling; (2) an extension of a temporary total evaluation under
I. Background
The veteran served on active duty in the U.S. Air Force from April 1967 to January 1971. R. at 45. A January 1967 preinduction examination reported no relevant abnormalities. R. at 20-24. Service medical records included a December 1970 entry noting the veteran’s complaints of chest pains after lifting heavy objects. R. at 39,41.
Immediately following discharge, the veteran was treated in February 1971 by a private cardiologist for a heart condition diagnosed as recurrent pericarditis. R. at 51-52, 77. (Pericarditis is the inflammation of the pericardium; the pericardium is “the fibroserous sac that surrounds the heart and the roots of the great vessels, comprising an external layer of fibrous tissue ... and an inner serous layer____ ”, Dorland’s Illustrated Medical Dictionary (Dorland’s) 1257, 1258 (28th ed.1994).) In July 1971, a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) decision granted the veteran’s application for disability compensation for pericarditis and assigned a 10% rating. R. at 79, 102-03.
An April 1992 private medical record from Dr. Rao noted that the veteran had had chronic pericarditis since 1970, that a recent attack was not relieved with medication (Prednisone), and that he had pain in his right arm. R. at 117. The physician also noted that the veteran’s heart was not enlarged, that there were no heart murmurs, that his electrocardiogram (EKG) was normal, and that there was no cardiomegaly. R. at 117, 129. (Cardiomegaly is hypertrophy of the heart; hypertrophy is “the enlargement or overgrowth of an organ or part due to an increase in size of its constituent cells”, Dorland’s at 268, 802.) An echocardiography report prepared at the time revealed “[pjericadial thickening and calcification without evidence of pericardial effusion or restriction” and also revealed “evidence of irregular pericardial thickening and punctate pericardial calcification.” R. at 120. That same month, the veteran sought a rating greater than 10% for his service-connected pericarditis, stating that he has had increased chest pains and noting that his cardiologist told him not to work. R. at 123.
On May 28,1992, the veteran underwent a pericardieetomy at a private hospital. R. at 136. (A pericardieetomy is the excision of the pericardium, Dorland’s at 1257.) A report of chest x-rays, which had been taken after the operation, noted: “The heart size is at the upper limits of normal. There is moderate widening of the mid mediastinum, predominantly aorta.” R. at 212. (The middle mediastinum is “the division of the mediastinum[, the mass of tissues and organs separating the two pleural sacs,] containing the heart enclosed in its pericardium, the ascending aorta, the superior vena cava, the bifurcation of the trachea into bronchi, the pulmonary arteries and veins, the phrenic nerves, a large portion of the root of the lungs, and the arch of the azygos vein,” Dorland’s at 998.) The impression was “[n]o visible active disease.” Ibid.
A November 1992 RO decision granted a temporary, total 100% rating for pericarditis due to post-hospitalization convalescence from May 28, 1992, through July 31, 1992, and restored the 10% rating, effective August 1, 1992. R. at 292-93. In January 1993, the veteran filed a Notice of Disagreement as to both claims, and thereafter perfected his appeal to the Board. R. at 295-96, 305. At a July 1993 hearing before the RO, he gave sworn testimony, relating symptoms of his service-connected condition and contending that he has an enlarged heart as a result of the surgery. R. at 310, 312. He related that “according to ... Dr. Sha[v]er any time you take the pericardium off the heart it has to enlarge because the restrictions from the pericardium is gone.” Ibid. He stated that Dr. Shaver also had told him that his heart was enlarged. R. at 316.
The record on appeal contains three medical reports from his private physician, Dr. Shaver. A June 1992 medical report from Dr. Shaver noted:
Cardiac exam was essentially within normal limits. There was no evidence of cardiomegaly. The chest x-ray shows a slight increase in the overall cardiac silhouette and prominence of the left atrial appendage. On the lateral view there is just a little bit of tenting on the diaphragm and a little bit of blunting at the eostophrenic angles.
R. at 322 (emphasis added). Dr. Shaver also noted that the veteran’s EKG showed “normal sinus rhythm, and occasional ectopic beat” and that he was “doing very well.” Ibid. In October 1992, Dr. Shaver reported that the veteran’s physical examination included the following results:
He looked well. His BP [blood pressure] was 110-115/70-80. Carotids were of normal upstroke without bruits. The lungs were clear except for a slight decrease to the breath sounds at the left base. There was no evidence of cardiac enlargement. There was no evidence of pericardial rub. He had a soft ejection murmur.... The EKG was within normal limits. A PA chest x-ray shows a suggestion of minimal cardiomegaly. There may be a bit of prominence of the left atrial appendage. The eostophrenic angles are clear. The lateral film is essentially within normal limits. [The veteran] has done extremely well. He is off his Prednisone. I’ve encouraged him to continue to be active ____
R. at 323 (emphasis added). A July 1993 medical report from Dr. Shaver noted the following upon physical examination:
His cardiac exam was perfectly normal ____ An EKG was entirely within normal limits. A PA and lateral chest x-ray of the chest showed borderline cardiac enlargement as one would expect following pericardieetomy. There also seemed to be a shadow at the upper waist to the heart with some residual calcium. There was no evidence of congestive heart failure. There was some prominence of the left atrial appendage as would be expected with a pericardieetomy.
R. at 324 (emphasis added).
In the February 7, 1996, BVA decision here on appeal, the Board, finding that the criteria for a 30% rating had not been met, denied, inter alia, the veteran’s claim for a
II. Analysis
A claim for an increased rating is a new claim, not subject to the provisions of
The Board found that the veteran was not entitled to a rating greater than his current 10% rating for pericarditis under
In the BVA decision here on appeal, the Board, in denying a rating greater than 10%, made the following findings with respect to Dr. Shaver’s reports:
His EKG was within normal limits. Though his chest X-rays revealed a minor prominence of the left atrial appendage and borderline cardiac enlargement, Dr. Shaver remarked that such findings were to be expected following a perieardiectomy, and did not indicate that they were significant, abnormal, or disabling, as he stated that the veteran was doing very well. Based on these findings, the Board concludes that the veteran’s condition does not meet the criteria for a 30 percent disability evaluation, as a diastolic murmur with characteristic EKG manifestations, with a definitely enlarged heart attributable to active pericarditis[,] has not been demonstrated by the evidence.
R. at 13-14 (emphasis added).
The Secretary contends that this case should be remanded to the Board because it (1) committed error when it noted the presence of cardiac enlargement but then failed to “articulate sufficient reasons or bases [under
The appellant seeks reversal of the Board’s finding that the conditions for a 30% rating have not been met. Br. at 11. He contends that Dr. Shaver’s reports establish that the veteran’s heart is enlarged and that he thus meets one of the three independent requirements for a 30% rating. Br. at 9-11. Additionally, he asserts that the Board erroneously considered factors “wholly outside the rating criteria provided by the regulations” when it denied a 30% rating. Br. at 11. He maintains that Dr. Shaver’s medical
A. Application of DC Criteria
The Court concludes, as both parties agree, that the Board incorrectly applied the 30% rating criteria in this case. The Board’s finding that the 30% criteria had not been met was based on its having applied rating requirements that exceeded in two respects those prescribed in the DC regulation. First, the Board erred in reading one of the requirements (a definitely enlarged heart) as conjunctive, rather than disjunctive as contemplated by the word “or” before “diastolic murmur” and before “definitely enlarged heart”.
Second, the Board found, in effect, that an enlarged heart is not sufficient to meet the 30% criteria of DC 7000 where such enlargement was “expected following a perieardiectomy”; where such enlargement is not “significant, abnormal, or disabling”; or where the enlargement exists but the veteran “was doing very well”. R. at 13-14. The rating criteria require a definitely enlarged heart; they do not also require that the enlarged heart be unexpected, significant, abnormal, or disabling. The Board, in essence, impermissibly rewrote the DC 7000 criteria. “The Board’s consideration of factors which are wholly outside the rating criteria provided by the regulation is error as a matter of law.” Massey v. Brown,
Accordingly, the Board’s conclusions in this case were legally erroneous, and cannot stand, because they were based on criteria other than those specified in DC 7000. That is not the end of the matter, however.
B. Reverse or Vacate
In the present case, it is undisputed that there is evidence that the veteran has an enlarged heart; the question before the Court is whether that evidence meets the criteria set forth in the DC that the enlarged heart be “definite” or whether the Court must remand for further development and an adequate statement of reasons or bases, as the Secretary contends. The crucial evidence of record consists of Dr. Shaver’s June 1992, October 1992, and July 1993, cardiac examination reports. The June 1992 report noted, with some apparent inconsistency, that there was “no evidence of cardiomegaly” but “a slight increase in the overall cardiac silhouette and prominence of the left atrial appendage.” R. at 322. The October 1992 report noted “no evidence of cardiac enlargement” but, also somewhat inconsistently, that there was “a suggestion of minimal cardiomegaly” and that there “may be a bit of prominence of the left atrial appendage”. R. at 323. Finally, the most recent report, from July 1993, found “borderline cardiac enlargement as one would expect following perieardieetomy”, and stated that “[t]here seemed to be a shadow at the upper waist to the heart with some residual calcium” and that there “was some prominence of the left atrial appendage as would be expected with a perieardiectomy”. Ibid.
1. Meaning of “definite”. In Hood v. Brown, the Court remanded a claim for an increased rating, greater than the assigned
The terms “total”, “severe”, “considerable”, and “mild” [in38 C.F.R. § 4.132 , DC 9210,] are all quantitative in nature; they describe the degree [of impairment]____ The term “definite”, on the other hand, is qualitative in nature. To say that a veteran has “definite” impairment of social and industrial adaptability is to say that the veteran is unmistakably impaired. It does not describe the degree of the impairment as the other quantitative terms do. For example, a veteran who is “mildly” or “totally” impaired is also “definitely” impaired, because the characteristics which constitute a psychotic disorder are, without doubt, present.
Id. at 303. The Court noted that Webster’s Third New International Dictionary (1986) “defines ‘definite’ as ‘real, actual’ or ‘marked by absence of the ... doubtful.’ ” Ibid. The Court noted the confusion in the DC criteria stemming from the use of quantitative terms for the 10% (“[m]ild impairment”) and 50% (“[considerable impairment”) ratings but a qualitative term for the 30% rating (“[d]efinite impairment”). In remanding the matter, the Court concluded that the Board was “free to construe the term ‘definite’ in [38 C.F.R. § ] 4.132 in a way that quantifies the degree of impairment and not the mere fact that impairment exists.” Id. at 303-04; see also Romeo v. Brown,
Unlike the DC 9210 criteria at issue in Hood, it is clear that the criteria identified in DC 7000 for meeting the 30%, 60%, and 100% ratings do not contain quantitative terms as to an enlarged heart; that is, all three ratings describe a heart that is “definitely enlarged”. (The Court notes that under DC 7000 only the criteria for a 100% rating also require that the enlargement be “confirmed by roentgenogram and clinically”.) There are no requirements that the enlargement be of a certain size or degree to qualify for a particular rating. The heart is either enlarged or it is “not enlarged”, and the latter terminology is actually one of the criteria for a 10% rating under DC 7000. The lack of a quantitative term for the enlarged-heart 30% rating criterion in DC 7000 is made more clear when compared to the 60% rating criterion of “marked enlargement of the heart” in DC 7007 (hypertensive heart disease).
2. Clear error in rating decision. A decision as to the severity of a disability is a factual determination. See Gleicher v. Derwinski,
Because the decision as to the severity of a disability is a factual determination, the Court must decide whether, based on the
In its decision, the Board focussed on the most recent medical report from Dr. Shaver, from June 1993, and stated: “Though his chest X-rays revealed a minor prominence of the left atrial appendage and borderline cardiac enlargement, Dr. Shaver remarked that such findings were to be expected following a pericardiectomy, and did not indicate that they were significant, abnormal, or disabling, as he stated that the veteran was doing very well.” R. at 13-14. Although the Board did not use, as it should have, the DC term of “definitely enlarged heart” in its findings and discussion of this evidence, it is clear from the context of the BVA decision that in the above-quoted language (and especially, its use of the word “[tjhough”, defined as “in spite of the fact”, Webster’s New World Dictionary, Third College Edition 1393 (1988)) the Board found that a cardiac enlargement existed. Otherwise, the Board’s tacking on of the unauthorized elements in addition to the requirement of an enlarged heart in order for a claimant to qualify for a 30% rating would make no sense. Certainly, the Board made no finding that Dr. Shaver’s June 1993 report of a minor prominence of the left atrial appendage and borderline cardiac enlargement did not constitute definite cardiac enlargement. Indeed, that would have been a most questionable finding in view of the mandates of
Alternatively, even if it were to be concluded that the Board did not find that the veteran had an enlarged heart, reversal would nonetheless follow on this record. Although Dr. Shaver’s June and October 1992 reports appear equivocal on the issue whether the veteran had an enlarged heart because of their apparent inconsistent statements, the most recent report, the June 1993 report, provides clear evidence that an enlarged heart exists. Based on this report, there is no plausible basis for a finding that an enlarged heart did not exist. And, as noted above, the Board did not so find.
III. Conclusion
On the basis of the foregoing and consideration of the parties’ pleadings and the record on appeal, the Court reverses the February 7, 1996, BVA decision that the criteria for a 30% rating under
REVERSED AND REMANDED.