Citation Nr: 0946583 Decision Date: 12/08/09 Archive Date: 12/18/09 DOCKET NO. 04-41 580A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for tension and migraine headaches. 2. Entitlement to a higher initial evaluation for common variable immunodeficiency (CVID), currently assigned a 30 percent evaluation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran had active service from August 1995 to June 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the RO in Louisville, Kentucky, which in pertinent part denied service connection for tension and migraine headaches, and granted service connection for CVID, assigning a 30 percent rating. The Board remanded this case in October 2007. It returns now for appellate consideration. FINDINGS OF FACT 1. There is competent medical evidence establishing that the Veteran has a chronic headache disability that is etiologically related to his service-connected CVID. 2. The Veteran's CVID is manifested by refractive fatigue and malaise, diarrhea and pathological weight loss. CONCLUSIONS OF LAW 1. Service connection for tension and migraine headaches is warranted. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2009). 2. The criteria for initial rating of 60 percent, but no higher, for CVID are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.88b, Diagnostic Code 6351 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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). I. The Veterans Claims Assistance Act of 2000 (VCAA) As to the Veteran's headaches claim, that claim has been granted, as discussed below. As such, the Board finds that any error related to the VCAA on that claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). With respect to the Veteran's CVID claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120- 21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Any error related to this element is harmless. During the development of the Veteran's claim, letters dated in April 2005 November 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187; Pelegrini II, 18 Vet. App. at 120-21. The letters advised the Veteran of the information necessary to substantiate the claim, and of his and VA's respective obligations for obtaining specified different types of evidence. The Veteran was informed of the specific types of evidence he could submit, which would be pertinent to his claim, and advised that it was ultimately his responsibility to support the claim with appropriate evidence. In addition, May 2008 and November 2008 letters provided the Veteran with notice concerning the assignment of disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). Subsequent to the issuance of the April 2005, May 2008 and November 2008 letters, the Veteran's claim was readjudicated in an October 2009 supplemental statement of the case (SSOC). Thus, there was no deficiency in notice and a harmless error analysis is not necessary. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Medical treatment records, including from Blanchfield Army Community Hospital, National Institutes of Health Clinical Center, The University of Kansas Medical Center, have been associated with the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The RO provided the Veteran appropriate VA examinations in January 2002 and September 2009. There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The 2002 and 2009 VA examination reports are thorough and supported by the medical treatment records on file. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may also be granted for a chronic disease, including an organic disease of the nervous system, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder that is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 71 FR 52744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(c)); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the recent change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board may consider the version of 38 C.F.R. § 3.310 in effect before the change, which is the version that favors the claimant. The Veteran contends that he has a chronic headache disability as secondary to the intravenous immunoglobulin (IVIg) infusion treatments for his service-connected CVID. For the reasons that follow, the Board concludes that service connection is warranted. Service treatment records reveal numerous complaints of migraine headaches after the Veteran began IVIg treatment for his CVID in October 1999. The medical board proceedings in February 2001, while the Veteran was on active duty, note a diagnosis of migraine headaches, by history. An MRI of the brain was performed in November 2001. No definite focal brain abnormality was identified. The ventricles were normal. No pathological enhancement was noted intracranially after intravenous administration of contrast material. At a January 2002 VA neurological examination, the Veteran reported having "normal" headaches approximately once a week and "migraine" headaches approximately every three weeks. All of the headaches began when he started his infusion treatments and occur often after his therapy. The examiner diagnosed the Veteran with tension headaches and migraine headaches. At a VA examination in September 2009, it was noted that the Veteran had received, and continued to receive, treatment in the form of weekly immunoglobulin infusions. These infusions were self-administered by the Veteran for three hours on Sundays and resulted in migraines that last for the remainder of the day. In the examination report, the examiner gives the opinion that it is at least as likely as not that the Veteran has a chronic headache disability following the administration of medication for the treatment of CVID. The examiner explains that the chronic headaches are only in conjunction with administration of the immunoglobulin and that cessation of the medication administration would eliminate the Veteran's chronic headaches. The relevant evidence of record, as summarized above, demonstrates that the Veteran currently suffers from chronic headaches. The evidence also establishes that these headaches are related to his service-connected CVID; specifically, the headaches are directly caused by the IVIg infusions administered in the course of his treatment for CVID. The Board notes that there is no evidence to the contrary regarding the etiology of his headaches. In addition, there is no indication that the Veteran may discontinue the IVIg infusions at any time in the foreseeable future or that there are any feasible alternative treatment options for his CVID available at the present time. In this regard, the Board finds that the Veteran will continue to suffer from chronic headaches, given his continuing need for IVIg infusions. As such, the Veteran is shown to have a chronic headache disability secondary to a service-connected disability. Furthermore, the Board notes that headaches are not among the symptoms contemplated under the diagnostic code used in this case for rating the Veteran's service-connected CVID, as further discussed below. Thus a grant of service connection and the assignment of a separate rating for headaches would not constitute pyramiding (i.e. rating the same symptoms twice under two diagnostic codes). See 38 C.F.R. § 4.14. In view of the foregoing, the Board concludes that the evidence is at least in equipoise as to whether the Veteran's tension and migraine headaches are secondary to his service- connected CVID, and therefore, service connection is warranted. The benefit-of-the-doubt rule has been applied in reaching this decision. See 38 U.S.C. § 5107(b) (West 2002); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, supra. III. Initial Rating The Veteran also seeks a higher initial rating for his service-connected CVID, currently evaluated as 30 percent disabling. For the reasons that follow, the Board finds that an initial rating of 60 percent, but no higher, is warranted. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board reviews the veteran's entire history when making a disability determination. See 38 C.F.R. § 4.1. When the veteran has timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he experiences certain symptoms. See, e.g., Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board notes that a number of internet articles regarding CVID and other immune diseases have been associated with the claims file. Treatise evidence such as these articles can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence may include statements contained in authoritative writings such as medical and scientific articles and research reports and analyses). The Board has reviewed the internet articles of record. Service treatment records reflect that the Veteran was initially diagnosed with CVID in July 1999 and subsequently began intravenous immunoglobulin (IVIg) therapy in October 1999. On VA examination in January 2002, the Veteran was diagnosed with panhypogammaglobulinemia, adult onset, CVID type; lymphoid hyperplasia, mediastinal, without peripheral adenopathy; anergy consistent with T-cell immune deficiency variably associated with CVID; chronic liver enzyme elevation with hepatosplenomegaly per abdominal CT scan; and status post biopsy of right posterior cervical gland (benign). It was noted that the Veteran was continuing monthly IVIg therapy. In between exacerbations of recurrent infectious episodes every two or three months, the Veteran would feel better but still have moderate fatigue. A complete blood count indicated a 3100 white count, which was slightly decreased. The examiner stated that the disease was not infectious but was active. Medical treatment records show monthly IVIg treatment at Blanchfield Army Community Hospital in Fort Campbell, Kentucky. On VA examination in September 2009, the Veteran was again diagnosed with CVID. Ongoing treatment of weekly IVIg infusions was noted. The Veteran indicated that these infusions were self-administered and took about three hours. Symptoms of headaches, fatigue and malaise would start after an infusion and last up to three days thereafter. The Veteran reported digestive symptoms of nausea, vomiting, diarrhea with loose stools ten times daily, abdominal pain and weight loss of over 50 pounds within the last year. The Veteran indicated that he was scheduled for both endoscopy and colonoscopy evaluation for symptomatology. Also noted were lymphatic and blood symptoms; respiratory symptoms involving cough and shortness of breath; neurologic and psychiatric symptoms involving memory loss, weakness of facial muscles, inability to concentrate, weakness and a previous cerebrovascular accident in 2001; and pain symptoms involving constant or near-constant moderate to severe pain of the lower abdominal quadrant. The examiner indicated that the disease was currently present and active. Physical examination revealed moderate abdominal pain with mild palpation and percussion to four quadrants of abdominals. The left eye lid showed evidence of very slight dropping in comparison to the right. Findings were otherwise normal. As an initial matter, the Board notes that CVID is a condition that is not listed under any of the diagnostic codes. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. In this case, the Veteran's CVID has been rated by analogy under Diagnostic Code 6351 (HIV-related illness), as also pertaining to an immune deficiency diseases. See 38 C.F.R. § 4.88b. The Veteran argues that diagnostic code 6351 is not the most appropriate diagnostic code. He maintains that he will never develop an "AIDS-related opportunistic infection," contemplated for a 60 percent rating under diagnostic code 6351. However, although, the RO must, at this stage, rate the Veteran's symptoms under the diagnostic code(s) it finds to be most appropriate, based on the evidence currently of record, the Board is unable to find a more closely related diagnostic code. Under Diagnostic Code 6351, a higher rating of 60 percent does not necessarily require opportunistic infections; a 60 percent rating is also warranted for "refractory constitutional symptoms, diarrhea, and pathological weight loss," and "secondary diseases afflicting multiple body systems" warrant a 100 percent rating. Moreover, to the extent that symptoms are not contemplated by this diagnostic code, they must be rated separately, although care must be taken to avoid pyramiding. See 38 C.F.R. § 4.14. The Board also notes that the Veteran is separately service- connected for gastroesophageal reflux disease, rated as 10 percent disabling; parenchymal lung disease with recurrent bronchitis, rated as 10 percent disabling; and recurrent infectious flares of sinusitis, rated as noncompensable. Although the Veteran is seeking a higher initial rating for his CVID, he has at no time initiated an appeal for higher initial ratings for the other service-connected disabilities. As the evaluations of the other disabilities are not issues presently on appeal, the Board may not consider the symptomatology and effects of those disabilities in evaluating his entitlement to a higher initial rating for CVID. See 38 C.F.R. § 4.14. Likewise, as the Board is granting service connection separately for the Veteran's chronic headache disability, as discussed above, the headache symptoms may not be considered for purposes of evaluating his CVID. Under Diagnostic Code 6351, a 30 percent rating is appropriate where the HIV-related illness results in recurrent constitutional symptoms, intermittent diarrhea, and requires approved medication(s); or as the minimum rating with T-cell count less than 200, or hairy cell leukoplakia, or oral candidiasis. A 60 percent rating is available if there are refractory constitutional symptoms, diarrhea, and pathological weight loss; or as the minimum rating following development of AIDS-related opportunistic infection or neoplasm. A 100 percent rating is warranted for AIDS with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems; or an HIV-related illness with debility and progressive weight loss, without remission, or few or brief remissions. Note (2) states that psychiatric or central nervous system manifestations, opportunistic infections, and neoplasms may be rated separately under appropriate codes if higher overall evaluation results, but not in combinations with percentages otherwise assignable above. 38 C.F.R. § 4.88b. In order to meet the criteria for the next higher rating of 60 percent for CVID, the evidence must show refractory constitutional symptoms, diarrhea, and pathological weight loss. Here, the Veteran is shown to have constitutional symptoms of fatigue and malaise that occur weekly following his IVIg infusions and last up to several days. The evidence also indicates that he has diarrhea, with loose stool ten times a day. In addition, there is evidence of weight loss of over 50 pounds within the last year. Despite the Veteran's ongoing and continuous treatment of IVIg infusions since October 1999, it was noted at the September 2009 VA examination that his CVID was present and active. Taking into consideration all of the relevant evidence of record, the Board finds that the overall disability picture for the Veteran's CVID more nearly approximates the criteria for a 60 percent evaluation under Diagnostic Code 6351. The Board has considered the assignment of an even higher rating of 100 percent. However, there is no evidence of any secondary diseases afflicting multiple body systems that have not already been accounted for in the Veteran's separate disability ratings. See 38 C.F.R. § 4.14. A higher initial evaluation of 100 percent is therefore not warranted. Furthermore, the Board has considered the rule for staged ratings. Fenderson, supra; Hart, supra. However, as the evidence does not show that the criteria for a rating in excess of 60 percent have been met at any time during the period on appeal, the Board concludes that staged ratings are inapplicable. Finally, the Board has considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Veteran's disability has not been shown to cause marked interference with employment beyond that contemplated by the Schedule for Rating Disabilities, as discussed above; has not necessitated frequent periods of hospitalization; and has not otherwise rendered impractical the application of the regular schedular standards utilized to evaluate the severity of the disability. Thus, the Board finds that the requirements for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). As such, the Board concludes that an initial rating of 60 percent, but no higher, is warranted for the Veteran's CVID. The benefit-of-the-doubt rule has been applied in arriving at this decision. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for tension and migraine headaches is granted. An initial evaluation of 60 percent, but no higher, for CVID is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs