Citation Nr: 1237310 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-13 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial compensable evaluation for anemia. ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from October 1982 to October 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. FINDING OF FACT The record shows that the Veteran's anemia is asymptomatic with hemoglobin readings above 10gm/100ml. CONCLUSION OF LAW The criteria for a compensable evaluation for anemia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.117, Diagnostic Code 7700 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Veteran's claim for arises from her disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, the RO associated the Veteran's service treatment records, private treatment records, and VA outpatient treatment records and he was afforded VA examinations. See 38 C.F.R. § 3.159(c)(4) (2012). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination obtained in this case is more than adequate. The examination provided adequate basis for rating the Veteran's disorder. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Further, there is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since she was last examined. See 38 C.F.R. § 3.327(a) (2012). The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, she has not submitted evidence of unemployability, or claimed to be unemployable; therefore, the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009; Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Increased Initial Evaluation Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Yet, the relevant temporal focus for adjudicating an increased rating claim is on the evidence establishing the state of the disability from the time period one year before the claim was filed until a final decision is issued. Hart v. Mansfield, No. 05-2424, 2007 WL 4098218 (Vet. App. Nov. 19, 2007). In cases where the original rating assigned is appealed, consideration must be given to whether the Veteran deserves a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Evidence The Board has reviewed the evidence in the file. Private treatment records including laboratory reports show hemoglobin findings throughout the appeal period thsat are above 10gm/100ml. For example, the findings were recorded as 12.8 in January 2007, 12.7 in March 2007, 13.0 in July 2007, 12.06 in February 2008, 13.0 in April 2008, 13.6 in May 2008, 12.5 in September 2008, 12.3 in December 2008, and 13.0 in September 2009. The records also show complaints of headaches. Discussion The Veteran is noncompensably rated for anemia. Under 38 C.F.R. § 4.117, Schedule of Ratings-Hemic and Lymphatic Systems, DC 7700 provides that anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia shall be rated as 0 percent disabling with Hemoglobin 10 gm/100ml or less, asymptomatic; 10 percent disabling with Hemoglobin 10 gm/100ml or less with findings such as weakness, easy fatigability or headaches; 30 percent disabling with Hemoglobin 8 gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath; 70 percent disabling with Hemoglobin 7 mg/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months); and 100 percent disabling with Hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. A Note thereto indicates: Evaluate complications of pernicious anemia, such as dementia or peripheral neuropathy, separately. 38 C.F.R. § 4.117, DC 7700. The record shows that any anemia present is stable with hemoglobin readings ranging from 12.5 to 13.6. None of these studies demonstrated a reading of 10 gm or less, which is one of the requirements for a compensable rating. Although the Veteran is shown in treatment records to have headaches, without lower hemoglobin readings, the Veteran is not entitled to a higher rating for her service-connected anemia. In fact, at the examination in April 2009, the VA examiner stated that the anemia is not currently active. The Veteran is competent to report symptoms associated with her anemia, and there is no reason shown to doubt her credibility. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the severity of her hemoglobin studies and her views are of no probative value. And, even if her opinion was entitled to be accorded some probative value, it is far outweighed by the medical evidence of record demonstrating clinical analysis of her anemia including the hemoglobin studies. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The preponderance of the evidence is against the claim for an evaluation higher than zero percent for service-connected anemia; there is no doubt to be resolved; and an increased rating is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57,-58. ORDER Entitlement to a compensable evaluation for anemia is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs