Citation Nr: 0304523 Decision Date: 04/14/03 Archive Date: 06/02/03 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 DOCKET NO. 00-07 623 ) DATE APR 17, 2003 ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio ORDER The following correction is made in a decision issued by the Board in this case on March 12, 2003: The issue on the title page “Entitlement to an initial compensable evaluation for weight loss, as secondary to Peroxicam (Feldene)” is corrected to read “Entitlement to an initial compensable evaluation for weight gain, as secondary to Peroxicam (Feldene)”. ____________________________________________ Gary L. Gick Veterans Law Judge, Board of Veterans’ Appeals Citation Nr: 0304523 Decision Date: 03/12/03 Archive Date: 03/24/03 DOCKET NO. 00-07 623 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial compensable evaluation for weight loss, as secondary to Peroxicam (Feldene). WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Spouse ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran had verified active service from January March 1974 to June 1980, from September 1981 to August 1989, and from February 1991 to February 1999. Separation documents note a period of over five years unverified active service prior to March 1974. These documents further reveal the veteran was awarded the Purple Heart on two occasions, and that he retired in February 1999 with 28 years of active federal service. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2001, the Board remanded this claim for further development, including giving the veteran the opportunity to identify additional medical evidence and affording him an examination to determine the nature and etiology of his weight gain. In August 2001, the RO requested further information from the veteran concerning his treatment. He responded, in the same month, that he had no further medical evidence to submit. In August 2001, an examination was conducted and the report is of record. The Board finds that the RO has complied with the terms of the March 2001 Remand. See Stegall v. West, 11 Vet. App. 268 (1998). The case is now again before the Board. FINDING OF FACT The veteran's service connected weight gain, secondary to Peroxicam (Feldene), is manifested by weight gain and fatigability. CONCLUSION OF LAW The criteria for an initial evaluation of 10 percent for weight gain, secondary to Peroxicam (Feldene), are met. 38 U.S.C.A. § 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.31, 4.119, Diagnostic Code 7999-7903 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION Service-connected disabilities are rated in accordance with the VA's Schedule for Rating Disabilities (Schedule). The ratings are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4 (2002). When rating the veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In cases 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). However, since the present appeal arises from an initial rating decision which established service connection and assigned the initial disability evaluation, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. A June 1999 rating decision granted service connection for weight gain, secondary to Peroxicam (Feldene), based on the evidence then of record, which included service medical records and a December 1998 VA examination report. Service medical records show that the veteran was prescribed Peroxicam (Feldene) at high dosages for treatment of knee problems. Subsequently, he manifested pruritis, gastritis with associated bleeding and anemia, and weight gain that were found to be the result of Feldene overdose. An October 1995 Aeromedical Summary shows that Feldene toxicity was first discovered in February 1995, after the veteran reported persistent, generalized pruritis. Treatment was unsuccessful until the Feldene was discontinued. However, further manifestations associated with chronic use of the non-steroidal anti-inflammatory (NSAID) were then discovered: clinical results showed findings of low hemoglobin and hematocrit, and iron deficiency anemia. Further testing revealed gastritis with associated bleeding, and the examiner diagnosed chronic iron deficiency anemia and Feldene toxicity/NSAID induced gastritis. The report noted that the gastritis had resolved, but that the anemia persisted. These records also show that the veteran was found to have gained weight, but this weight gain was also attributed to the overdose of Feldene. An October 1996 entry in the service medical records indicates that the veteran's weight gain, given the time line, is related to metabolic changes secondary to Feldene. The examiner noted that one would expect the weight gain to have resolved, but that the veteran had been on Feldene for over four years. Hence, the period of time required for his metabolic rate to return to its previous level was unknown. These findings are repeated in a February 1997 notation. An Overweight Evaluation dated in February 1997 is also of record and indicates that weight gain, as well as the other reactions the veteran experienced upon taking Feldene, are known side effects of the medication. In pertinent part, the physician states: [The servicemember] was on Peroxicam (Feldene) at high dose for approximately 4 years which has a known side effect of weight gain. In addition to that weight gain he had several other reactions to the medication. A search of available literature on the medication and data bases on the Internet show that while it is a know[n] side effect of the medication the time to take the weight off after stopping the medication is unknown. The mechanism of weight gain appears to be due to a change in metabolic rate and there is no data that I have found relating to how long it will take for his metabolism to return to normal or if it will return to normal. The physician concluded that the veteran had a valid medical reason for his overweight condition and his inability to loose weight. He was on an appropriate diet and was by all indications following it. He reported compliance with his aerobic exercise program, albeit with limitations imposed by degenerative joint disease in both knees, for which he had permanent profiles. The prescribed treatment was considered adequate, and the physician observed that the length of time required to resolve the weight gain was undetermined. The veteran's reports of medical history and examination at discharge, dated in November 1998, reflects complaints of weight gain and itching secondary to overdose of prescribed Feldene. His weight measured 259 pounds at a height of 71- 1/2 inches, or nearly six feet. The examiner diagnosed increased weight secondary to Feldene use, prescribed for osteoarthritis. A review of the medical examination reports and body fat studies of record show the following weight measurements, at height of 72 inches: Weight Measurements Date Weight 5/81 198 5/83 185 6/86 203 1/87 208 6/87 210 3/88 186 5/88 204, 203 5/89 211 12/90 200 3/91 214 5/91 214 3/92 200 6/93 227 6/94 236 8/95 253 5/96 265 3/97 255 6/98 259 11/98 259 The report of medical history dated in June 1993 indicates the veteran is taking no medication. In June 1994, he reported being prescribed Feldene. The VA examination report notes complaints of weight gain secondary to Feldene, prescribed for back and joint pain. The examiner observed the veteran was in excellent nutritional status and had a large body build. There were no signs of thyromegaly. The abdomen was soft, non-tender, and was normally active without rebound tenderness or organomegaly. There were no findings of thyroid, pituitary, adrenal abnormalities or other affected systems. The examiner diagnosed Feldene overdose resulting in gastro- intestinal bleed, rash, and weight gain. The examiner noted that this condition was "physician-caused" and indicated, specifically, that problems with weight gain as a result of the overdose persisted. Based on this evidence, the RO, as noted above, granted service connection for weight gain, as secondary to the prescribed Feldene. The RO assigned a noncompensable percent evaluation, effective from March 1999. The veteran has appealed the assignment of a noncompensable evaluation. In essence, he argues that he experiences fatigability due to his weight gain, and that he cannot do the physical activities he used to do, such as run or chase after his children. He states that his weight, once stable at 223, continues to fluctuate approximately 252 to 274, or 25 to 50 pounds above what it had been before he started taking the Feldene. In August 2001, the veteran underwent further VA examination. The report shows the examiner reviewed the veteran's medical records. The examiner noted that the veteran was first prescribed Feldene in 1991. At that time, his weight was 220 pounds. The veteran reported that the medication worked so well that his physician increased the dosage. He took the higher prescribed dosage for four years. In 1995, he developed gastro-intestinal bleeding, swelling, itching, pruritis, and weight gain. The veteran reported his weight increased to 300 pounds, dropped, and then increased again to 250 pounds. The examiner observed that the medical record reveals no diagnoses of any endocrine problems. The veteran also complained of constipation, but noted he had had this condition most of his life, and reported that he quit smoking in 1993 with some weight gain. He reported fatigability on overexertion, but identified no other mental, neurological, cardiovascular, or gastrointestinal symptoms. No symptoms of cold or heat intolerance could be detected. Pulse and blood pressure, eyes and vision were normal. No tremor or myxedema was detected, and no residuals of thyroid disease could be found. The examiner noted that the veteran appeared overweight, but presented no other obvious abnormalities. Rather, he was observed to be alert, oriented, and ambulatory in no acute distress. He exhibited normal strength and no dyspnea. His weight measured 281 pounds at a height of 72 inches. The examiner noted that an April 2001 VA examination report for Agent Orange showed the veteran weighed 278 pounds. The examiner diagnosed exogenous obesity not secondary to Feldene and offered the following statement: Reviewing history, it clearly shows the veteran's weight was 220 prior to treatment with Feldene. The Feldene dose was doubled. The veteran took double amount of Feldene for four years. According to the veteran his weight remained stable during all those four years but then suddenly on the last six months of the four year treatment of Feldene, he developed GI bleeding, itching, rash and sudden gain weight with swelling of the body (the veteran weight gained because of edema but it was not really fat, in fact). Then, when Feldene was discontinued, [h]e lost 50 pounds. His weight went down to 250 pounds. He has not taken Feldene any more since 1995. ... the veteran weighed 271 pounds [on 11/30/98], then 04/20/01, 278, and presently, 281. Above clearly shows that the sudden weight gain during the reactions of Feldene was secondary to edema. But, the veteran's overall weight has been gradual (fat) since 1991. In my opinion, this is exogenous type obesity (fat) following the national trend of obesity. The veteran on the Agent Orange Examination showed some intolerance to glucose. His father was a diabetic, one sister obese. Therefore, following the side effects of Feldene, which included edema (with expected weight gain), itching, GI bleeding, he later on lost 50 pounds (resolution of edema) then he has had progressive weight gain (without taking Feldene) since 1998. The current 0 percent rating was assigned under Diagnostic Code 7999-7903 for weight loss secondary to Peroxicam (Feldene) rated analogous to hypothyroidism (see 38 C.F.R. § 4.27 (2002)). A 10 percent evaluation for hypothyroidism contemplates fatigability, or; continuous medication required for control. A 30 percent evaluation is warranted for fatigability, constipation, and mental sluggishness. A 60 percent evaluation is afforded for muscular weakness, mental disturbance, and weight gain. A 100 percent evaluation is warranted for cold intolerance, muscular weakness, cardiovascular involvement, mental disturbance (dementia, slowing of thought, depression), bradycardia (less than 60 beats per minute), and sleepiness. 38 C.F.R. § 4.119, Diagnostic Codes 7903. After review of the evidence, the Board finds that the evidence supports the assignment of an initial evaluation of no greater than 10 percent for the time from March 1999 to the present. The veteran has asserted he manifests symptoms such as fatigability and fluctuating, uncontrollable weight gain. The medical evidence reflects fluctuating weight from 214 pounds to 281 pounds from March 1991 to August 2001, with weight fluctuating between 253 and 281 from August 1995-the year in which he discontinued the Feldene-to the most recent examination report in August 2001. In addition, the veteran has consistently complained of fatigability. The August 2001 VA examination report reflects complaints of fatigability, albeit on overexertion, which the examiner appeared to find within the realm of normalcy. The record presents two competing theories for the veteran's fluctuating weight gain. Service medical records offer medical opinions that the veteran's weight gain is due to the overdose of Feldene. Moreover, these medical professionals further indicate that the cause of this weight gain is a disruption in the veteran's metabolic system, and that there is no way of telling when, or even if, this will resolve. The examiner conducting the December 1998 VA examination appears to concur, stating specifically that the weight gain is due to the overdose of Feldene and that the veteran still exhibits problems with weight gain as a result. In contrast, the August 2001 VA examination report contains an opinion indicating that any weight gain caused as a result of the Feldene would have been the result of edema, and would have resolved after the drug had been discontinued. Notwithstanding the contradiction in the medical evidence of record, the Board notes that the veteran is service-connected for weight gain secondary to prescribed Feldene, as is amply supported by the medical evidence compiled during the veteran's active service and further supported in the conclusions of the December 1998 VA examination report. Hence, the record presents a reasonable doubt as to whether the symptoms of weight gain and fatigability the veteran now experiences are due to yet-existing residuals of Feldene overdose. The Board resolves the issue in favor of the veteran, and finds that the assignment of 10 percent evaluation for his weight gain, as secondary to Peroxicam (Feldene) is appropriate. See 38 C.F.R. § 3.102. A higher evaluation is warranted for symptoms of fatigability, constipation, and mental sluggishness, but the medical evidence does not reflect that the required manifestations are present or, where they are, they are not attributed to the in-service Feldene overdose. Specifically, the medical evidence does reflect that the veteran complains of constipation, but the August 2001 VA examination report shows that the veteran did not attribute this to his Feldene overdose. Rather, he stated he had had it most of his life. The examiner therefore observed that the constipation was not a new symptom. In addition, the veteran has not complained of mental sluggishness and the medical evidence reflects no findings of mental abnormalities. His mental assessment was found to be normal in the August 2001 VA examination. The December 1998 VA examination reveals no orientation, memory, neurological, or psychiatric abnormalities. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1). The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Here, the Board finds no evidence of an exceptional disability. The veteran has not required frequent treatment or hospitalization for his service-connected weight gain, as secondary to Peroxicam (Feldene). Hence, the evidence cannot establish that the service-connected weight gain, alone, interferes markedly with his employment so as to make application of the schedular criteria impractical. As a whole, the evidence does not show that the impairment resulting solely from weight gain, as secondary to Peroxicam (Feldene) warrants extra-schedular consideration. Accordingly, the Board concludes that the impairment resulting from this disability is adequately compensated by the initial 10 percent evaluation now granted. VCAA. There was a significant change in the law during the pendency of this appeal. The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002) redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. The final regulations implementing the VCAA were published on August 29, 2001, and they apply to most claims for benefits received by VA on or after November 9, 2000, as well as any claim not decided as of that date, such as the one in the present case. 38 C.F.R. § 3.159. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. § 3.159(b). There is no issue as to providing an appropriate application form or completeness of the application in this case. In the circumstances of this case, the veteran has been advised of the applicable laws and regulations, and the evidence needed to substantiate his claim by a development letter dated in August 2001, and a the February 2000 statement of the case and November 2002 supplemental statement of the case. In particular, the statement of the case and supplemental statement of the case informed the veteran of the evidence used to evaluate his service-connected disability. In addition, this case was remanded for further development in March 2001. The August 2001 development letter informed the veteran what evidence or information he had to submit and notified him that VA would assist in obtaining all relevant evidence in the custody of a federal department or agency. In August 2001, the veteran advised that he had no other evidence to submit. Thus, VA's duty to notify has been fulfilled. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Secondly, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)). The record shows that the RO obtained the veteran's service medical records. In addition, the RO offered him the opportunity for additional examination and requested he identify any other sources of VA or private medical treatment, in compliance with the March 2001 Remand. The veteran responded, in August 2001, that he had no further evidence to submit. The Board notes that the examiner conducting the August 2001 VA examination reported results from an April 2001 VA examination for Agent Orange, which does not appear to be of record. However, the Board finds that it is not necessary to obtain this examination report for the following reasons. First, the examiner reported the veteran's weight measurement and history as reflected in the report. Second, the veteran raises no complaints or issues that are not considered by the examiner in the subsequent, August 2001, report. Finally, the Board is granting the veteran's claim. And, while it could be argued that the April 2001 report should be obtained as evidence to support the next higher rating, the Board notes that it is highly unlikely that it would do so. As explained above, the balance of the record, including the August 2001 report, which is subsequent in time to the April 2001 report, simply does not demonstrate that the veteran either complains of or exhibits the symptomatology required for the next higher rating. In view of the foregoing, the Board finds that all reasonable efforts to secure and develop the evidence that is necessary for an equitable disposition of the matter on appeal have been made by the agency of original jurisdiction. Every possible avenue of assistance has been explored, and the veteran has had ample notice of what might be required or helpful to establish his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the veteran under Bernard v. Brown, 4 Vet. App. 384 (1993). ORDER Entitlement to an initial evaluation of 10 percent, and no greater, for weight gain, as secondary to Peroxicam (Feldene), is granted, subject to controlling regulations governing the award of monetary benefits. ____________________________________________ Gary L. Gick Veterans Law Judge, 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.