Citation Nr: 0209268 Decision Date: 08/07/02 Archive Date: 08/12/02 DOCKET NO. 99-20 748 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE The propriety of the reduction of the 100 percent rating assigned for the service-connected thrombocytopenic purpura/hemolytic anemia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty from May 1985 to June 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 1999 rating decision of the RO that proposed to reduce the rating for the service-connected thrombocytopenic purpura/hemolytic anemia from 100 percent to 70 percent disabling, effective on September 1, 1999. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The service-connected thrombocytopenic purpura/hemolytic anemia is not shown to have undergone material improvement in that it is likely productive of a level of impairment that more nearly approximates that of required continuous treatment with corticosteroids and occasional platelet counts less than 20,000. CONCLUSION OF LAW The criteria for the restoration of the 100 percent rating for the service-connected thrombocytopenic purpura/hemolytic anemia have been met. 38 U.S.C.A. §§ 1155, 5107(b), 7104 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.117 including Diagnostic Code 7705 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disorder. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the veteran's disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The regulations require that where there is a question as to which of two evaluations is to be applied, 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. The veteran's service-connected thrombocytopenic purpura/hemolytic anemia was rated as 100 percent disabling under the provisions of 38 C.F.R. § 4.117 including Diagnostic Code 7705. Pursuant to Diagnostic Code 7705, a 70 percent evaluation is assigned where there is a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding. A 100 percent evaluation requires a platelet count of less than 20,000, with active bleeding, requiring treatment with medication and transfusions. 38 C.F.R. § 4.117. A careful review of the service medical records shows that the veteran was diagnosed as having thrombocytopenic purpura/hemolytic anemia. A September 1995 platelet count was reported to be 2000. Based on that evidence, service connection was granted, and a 100 percent rating was assigned. An April 1998 VA examination revealed a low platelet count of 82,000. The report indicated that the veteran too Anazol, prednisone (as needed) and Fosamax. A medical report dated in June 1998 from Robert L. Reid, M.D., reveals a platelet count of 67,000, which was reported to be responding to low dose prednisone. Dr. Reid recommended taking the veteran off of the corticosteroid to see where his platelet count would stabilize without the medication. It is unclear whether this was ever accomplished; however, during the following three months, the veteran's platelet count peaked at approximately 200,000. In March 1999, the veteran's platelet count was 15,000; in May 1999, it was 14,000. An April 2000 report from Dr. Reid indicates that the veteran was started on an alternate day prednisone regimen in an attempt to reduce the frequency and severity of his thrombocytopenic episodes. Subsequent letters from Dr. Reid indicate that the veteran continued to take prednisone and Fosamax and that his platelet count fluctuated between 25,000 and 200,000. A VA examination was conducted in June 2001. It was noted that an attempt had been made to taper the veteran from steroids, but that it did not work. He reportedly had been on constant steroids since November 1999. It was also reported that he had received platelets in the past, most recently in 1998. The tests revealed that the veteran's platelet count was 38,000. The examiner opined that the veteran's thrombocytopenia had not improved and was not responding well to steroids. There was no evidence of bleeding episodes. Although the evidence does not show that the veteran has bleeding episodes or has required transfusions, it is certainly clear that his condition requires medication. Further, according to the recent VA examination, the veteran is no longer responding well to the medications. Additionally, the veteran's platelet count fluctuates substantially, on occasion falling below 20,000. The Board finds that the disability picture presented by the veteran's service-connected thrombocytopenic purpura/hemolytic anemia, which has not stabilized or shown any improvement since separation from service, more nearly approximates the criteria for a 100 percent rating. VCAA On November 9, 2000, the President signed into law the Veterans Claims Assistance Act (VCAA) of 2000, which has since been codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2001). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107. In light of the favorable action taken hereinabove, the question of whether the VA's duties pursuant to VCAA have been fulfilled does not need to be addressed. ORDER A rating of 100 percent for the service-connected thrombocytopenic purpura/hemolytic anemia is restored, subject to the regulations governing payment of VA monetary benefits. STEPHEN L. WILKINS Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.