Citation Nr: 0944919 Decision Date: 11/25/09 Archive Date: 12/04/09 DOCKET NO. 06-34 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 30 percent for leukopenia, thrombocytopenia with a history of myelodysplastic syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from August 1962 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Waco, Texas, that denied an increased disability rating in excess of 30 percent for the Veteran's service-connected leukopenia, thrombocytopenia with a history of myelodysplastic syndrome. FINDING OF FACT The Veteran's leukopenia, thrombocytopenia with history of a myelodysplastic syndrome is not manifested by the need for bone marrow transplant, transfusion of platelets or red blood cells, recurring infection, bleeding or a platelet count of 70,000 or less. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 30 percent for leukopenia, thrombocytopenia with history of a myelodysplastic syndrome, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2008); 38 C.F.R. § 4.117, Diagnostic Codes 7702, 7705 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in February 2006. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. An April 2006 letter provided the Veteran with notification of the laws regarding degrees of disability and effective dates. The issue on appeal was subsequently readjudicated in the August 2006 Statement of the Case, and multiple Supplemental Statements of the Case. VA has obtained service treatment records, VA treatment records, private medical records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and afforded the Veteran the opportunity to present statements and evidence. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When there is a question as to which of two evaluations should 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. Service treatment records reveal that the Veteran was hospitalized in October and November 1963 for granulocytopenia, manifested by leukopenia with absolute neutropenia and eosinophilia of unknown etiology. On service separation examination in April 1964, "neutropenia with granulocyte maturation suppression and slight erythrocyte macrocytosis, cause unknown--considered to be within the lower limits of normal and unrelated to any known pathological condition," was noted. It was also noted that no treatment was required for the condition and that it was not disabling. In November 1964, a VA Compensation and Pension examination of the Veteran was conducted. This was a special hematological examination. After full examination, including laboratory testing, the diagnosis was only a history of neutropenia. A report of VA hospitalization in January 1968 showed the veteran had been hospitalized that month for peptic ulcer and idiopathic thrombocytopenia. As a result, a rating decision dated March 1968 granted service connection for neutropenia with thrombocytopenia and assigned a 0 percent rating under Diagnostic Codes 7702, 7700, which remained in effect until 1994. In September 1990, a VA examination of the Veteran was conducted. Hematology test results revealed platelet counts of 94,000 in June 1989; 131,000 in July 1990; and 95,000 in September 1990. The diagnosis was neutropenia and thrombocytopenia. The examiner diagnosed myelodysplastic syndrome and noted an unsuccessful bone marrow aspiration biopsy had been conducted in July 1990. Medical records for 1987 as well as outpatient treatment records from 1990 to 1994 were obtained. These records contained a suggestion of myelodysplastic syndrome and showed the veteran had multiple somatic complaints of unknown etiology. By rating decision of May 1995, the RO noted that the veteran's multiple somatic complaints appeared to be related to his service-connected disability and increased the evaluation of his disorder from noncompensable to 30 percent under Diagnostic Codes 7700, 7702. Subsequently, VA's Schedule for Rating Disabilities (Rating Schedule) was changed with the criteria for determining the disability evaluations assigned for hemic disorder being affected. New regulations updating the portion of the Rating Schedule that addresses the disability ratings assignable for hemic and lymphatic systems became effective on October 23, 1995. See 38 C.F.R. § 4.117, Diagnostic Codes 7700, 7702, 7705 (2000). In March 2000, another VA Compensation and Pension examination of the Veteran was conducted. The Veteran reported that he had not received blood transfusions, nor had he had any recent major infections. He also reported no spontaneous bleeding from any site. His principal complaint was of fatigue. He reported dyspnea on mild to moderate exertion. He denied any chest pain, fever, night sweats or weight loss. The examiner noted that the Veteran had not been hospitalized in the past five years and that his hemoglobin results had been consistently normal. Physical examination was essentially normal. There was no clinical indication of congestive heart failure. Laboratory blood count testing showed hemoglobin as 14.4, and hematocrit as 44. Platelet count was 93,000. Platelet morphology was said to be abnormal with significant megathrombocytes. Platelet count was said to be accurate between 90,000 and 98,000. The examiner's diagnosis was chronic leukopenia and thrombocytopenia with a previous diagnosis by history of myelodysplastic syndrome. He noted that the record did not contain definitive evidence of the presence of myelodysplasia, and that, based upon review of prior laboratory test results, the Veteran's disability had been static since 1989. In November 2000, the Board denied the Veteran's claim for an increased disability rating for his service-connected leukopenia, thrombocytopenia with a history of myelodysplastic syndrome, continuing the disability rating at the current 30 percent level. VA treatment records dated in January 2001 reveal that the Veteran was hospitalized with symptoms of chest pain and bradycardia. These records also note a diagnosis of myelodysplastic syndrome with stable blood counts. A February 2001 discharge diagnosis indicates that the chest pain symptoms were musculoskeletal in nature. In May 2001, a VA Compensation and Pension examination of the Veteran was conducted. The examiner noted the Veteran's recent hospitalization for chest pain. The Veteran reported that he had never required any transfusion or bone marrow transplant. Platelet count was 78,000. The diagnosis was "myelodysplastic syndrome with mild leukopenia and thrombocytopenia, which is persistent and stable, without evidence of other organ or bone pathology." In December 2005, the Veteran filed his claim for an increased disability rating for his service-connected blood disorder. The claim was filed on a VA Form 21-4138 which indicated a current address in Texas. The Veteran indicated prior treatment at VA medical centers in Tennessee, Alabama, and Texas. The VA medical evidence of record prior to the 1990s is from Alabama while the evidence from the early 2000s is from Tennessee. The VA treatment records from period 2005 and 2006 reveal outpatient treatment for disabilities other than his service-connected blood disorder. In March 2006, a VA examination of the Veteran was conducted. The Veteran reported symptoms of fatigue and shortness of breath. There was no indication of infection or the need for transfusion or bone marrow transplant. Laboratory test results revealed platelet counts of: 130,000 in September 2005; 155,000 in October 2005; and 132,000 in November 2005. The diagnosis was myelodysplasia syndrome with mild thrombocytopenia, mild leukopenia, and mild macrocytic anemia. An oncology consultation was attempted in July 2006, but the Veteran was uncooperative with the examining physician. Private hospital records dated in July and August 2007 reveal that the Veteran was treated for a syncopal episode and chest pain. In February 2008, the most recent VA Compensation and Pension examination of the Veteran was conducted. The examiner reviewed the medical evidence of record noting that the Veteran's recent hospitalization was for "cardiogenic syncope secondary to sinus node dysfunction of the heart so he had pacemaker placed." The Veteran reported period fatigue; the examiner indicated that this fatigue did not preclude manual labor. The Veteran also reported headaches with no set pattern. There was no indication of infection, or the need for transfusion, bone marrow transplant, or myelo-suppressant therapy. Laboratory test results revealed a platelet count of 112,000. The diagnosis was myelodysplastic syndrome with leukopenia and thrombocytopenia causing chronic tiredness. The examiner specifically indicated that the disease was "not active at this point in time, he has chronic stable disease." The examiner also noted that the Veteran's syncope was not related to the service-connected myelodysplastic syndrome. A June 2008 RO rating decision denied service connection for cardiogenic syncope, and the Veteran did not disagree with that determination. In a December 2007 letter, the Veteran indicated that he had been hospitalized several times in VA facilities in Chicago Illinois, Tennessee, and Texas as well as at private hospitals in Alabama, Georgia, and Tennessee. As noted above, the Board denied an increased disability rating for the disability at issue in November 2000. The evidence of record reveals that since 2005, the date of claim for the current appeal, the Veteran has resided in Texas. The RO requested the Veteran to provide the dates of treatment at the indicated facilities. He failed to respond. The RO made a finding of unavailability or records. The evidence suggests that the periods of treatment alluded to by the Veteran were prior to 2000 and the November 2000 Board decision which is final. The Veteran's service-connected leukopenia, thrombocytopenia with a history of myelodysplastic syndrome, has been rated at a 30 percent disability rating since 1994. It has specifically been rated under Diagnostic Codes 7702 and 7705 since April 2000. When a disability is encountered that is not listed in the rating schedule it is permissible to rate under a closely related disease or injury in which the functions affected, the anatomical location and the symptomatology are closely analogous to the condition actually suffered from. 38 C.F.R. § 4.20 (2009). Agranulocytosis is rated under Diagnostic Code Diagnostic Code 7702. A 30 percent rating is assigned when transfusion of platelets or red blood cells is required at least once per year but less than once every three months, or; infections recurring at least once per year but less than once every three months. A 60 percent rating is assigned when transfusion of platelets or red blood cells is required at least once every three months, or; infections recurring at least once every three months. A 100 percent disability rating contemplates the need for a bone marrow transplant or when transfusion of platelets or red blood cells at least once every six weeks, or infections recurring at least once every six weeks. 38 C.F.R. § 4.117, Diagnostic Code 7702 (2009). Thrombocytopenia is rated under Diagnostic Code 7705. A 30 percent disability rating contemplates a stable platelet count between 70,000 and 100,000, without bleeding. The next highest disability rating is 70 percent, which requires a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding. A 100 percent disability rating is assigned for a platelet count of less than 20,000, with active bleeding, requiring treatment with medication and transfusions. 38 C.F.R. § 4.117, Code 7705 (2009). There is no evidence showing that the Veteran's disability results in infections or requires treatment with blood transfusion or bone marrow transplants. Accordingly, a disability rating in excess of the current 30 percent rating cannot be assigned pursuant to Diagnostic Code 7702. The evidence of record shows that the Veteran's most recent platelet count is 112,000 and that the lowest platelet count of record was 78,000 at a May 2001 VA Compensation and Pension examination. There is no evidence of record showing that the Veteran's platelet count has ever been 70,000 or lower. Accordingly, a disability rating in excess of the current 30 percent rating cannot be assigned pursuant to Diagnostic Code 7705. The medical evidence of record reveals that the Veteran's service-connected myelodysplastic syndrome with leukopenia and thrombocytopenia causes chronic tiredness and that the disease is stable and not active. The Veteran's other symptoms of record such as chest pain and syncope are not shown to be related to the service-connected disability. Providing separate compensable rating under Daces 7702 and 7705 is not appropriate. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. §§ 4.14, 4.25 The preponderance of the evidence is against the increased rating claim for leukopenia, thrombocytopenia with a history of myelodysplastic syndrome; there is no doubt to be resolved; and an increased rating is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. There has been no showing that the service-connected leukopenia, thrombocytopenia with a history of myelodysplastic syndrome, under consideration here has caused marked interference with employment, has necessitated frequent periods of hospitalization, or otherwise rendered impracticable the application of the regular scheduler standards. The regular scheduler standards contemplate the symptomatology shown in this case. In essence, there is no evidence of an exceptional or unusual disability picture in this case which renders impracticable the application of the regular scheduler standards. As such, referral for consideration for an extraschedular evaluation is not warranted here. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 8 Vet. App. 337, 339 (1996). ORDER A disability rating in excess of 30 percent for leukopenia, thrombocytopenia with a history of myelodysplastic syndrome, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs