Citation Nr: 1322855 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 08-23 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an initial evaluation in excess of 60 percent for systemic lupus erythematosus (SLE). ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from May 1976 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 and January 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Department of Veterans Affairs Regional Office in Albuquerque, New Mexico. The Board remanded this matter in January 2011 to obtain Social Security records and VA treatment records and to afford the Veteran a VA examination. In May 2012, the Board remanded this case to obtain a VA medical opinion and to refer the claim for extraschedular consideration. The Board finds that the remand directives have been satisfied. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT Throughout the appeal period, service-connected systemic lupus erythematosus is not shown to be manifested by acute symptoms with frequent exacerbations, producing severe impairment of health. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for systemic lupus erythematosus have not been met for the entire initial rating period. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.125, 4.88b, Diagnostic Code (DC) 6350 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, an October 2006 letter advised the Veteran of the evidence required to substantiate her claim for service connection for systemic lupus erythematosus. This letter notified the Veteran of what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. This letter included provisions for disability ratings and effective dates. The Veteran has appealed the initial rating assigned in the February 2007 rating decision which granted service connection. The RO did not provide the Veteran with additional notice regarding the claim for a higher initial rating. In Dingess, the Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. The Board finds that VA met its obligation to notify the Veteran and no further notice is needed. The appellant 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.) VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159. In this case, the record indicates that the RO obtained all information relevant to the Veteran's claim. Moreover, the Veteran underwent adequate and probative VA medical examinations for her claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained relevant records, and has provided adequate examinations to the Veteran. The Veteran has not has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis of Claim Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Veteran has appealed the initial rating assigned following a grant of service connection. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for the disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2008). In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). A disability may require re-evaluation in accordance with changes in a veteran's condition. In determining the level of current impairment, it is thus essential that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1 (2012). A February 2007 rating decision granted service connection for systemic lupus erythematosus and assigned a 10 percent rating from October 1995. A January 2012 rating decision shows that the RO recharacterized the service-connected disability as systemic lupus erythematosus with Raynaud's disease and assigned an increased the evaluation to 60 percent, effective from October 1995. Systemic lupus erythematosus is rated according to Diagnostic Code (DC) 6350. A 60 percent rating is assignable for exacerbations lasting a week or more, 2 to 3 times a year. A 100 percent rating is assignable with frequent exacerbations producing severe impairment of health. A note following this Diagnostic Code provides that this condition should be evaluated either by combining the evaluations for residuals under the appropriate system, or by evaluating DC 6350, whichever method results in a higher evaluation. 38 C.F.R. 4.88b, Diagnostic Code 6350. The Veteran has been diagnosed with Raynaud's syndrome, which is rated according to DC 7117. A 60 percent rating is assignable with two or more digital ulcers and a history of characteristic attacks. A 100 percent rating is assignable with two or more digital ulcers plus autoamputation of one or more digits and a history of characteristic attacks. 38 C.F.R. § 4.104, Diagnostic Code 7117. The Board has carefully reviewed the evidence of record and finds that the weight of the lay and medical evidence does not demonstrate that an initial disability rating in excess of 60 percent for systemic lupus erythematosus with Raynaud's disease is warranted. In the October 1995 service connection claim, the Veteran reported that she had to take anti-inflammatory drugs for treatment of lupus in order to remain ambulatory. She indicated that she had constant pain in her left knee. She indicated that she was prone to pleurisy and was treated with Prednisone. The Veteran had a VA examination in March 1996. The Veteran reported a history of lupus, which was diagnosed in 1993. She reported that, for two years prior to establishing a diagnosis of lupus, she was treated for Raynaud's phenomenon. She reported that she was tired and weak and was found to be anemic. The Veteran reported that she was also treated for episodes of pleurisy, multiple joint pains, pericarditis and "many enlarged lymph nodes." The March 1996 VA examination did not specifically address the frequency of exacerbations of lupus. A VA outpatient treatment record dated in November 1996 reflects that the Veteran reported pain in the lungs. A physician assessed pleurisy and lupus flair. A VA outpatient treatment record dated in February 1998 noted pleurisy and effusion, resolved in prednisone. The Veteran reported fatigue, shoulder and knee pain. Assessment was lupus, stable. A VA general examination dated in February 1999 noted a history of lupus and Raynaud's disease. The Veteran reported that lupus was diagnosed in 1994. The VA examiner indicated that the criteria for the diagnosis was serositis, per well-documented x-rays with reoccurrences. The Veteran reported that she last had this 3 to 6 months prior. She also had arthritis of the knees and shoulders. The VA examiner indicated that the Veteran had a positive anti-nuclear antibody, and other than that, she did not have other criteria for lupus, such as pericarditis, oral ulcers, photosensitivity, rashes, psychosis, seizures, nephritis, thrombocytopenia, lymphopenia or discoid rash. The VA examiner indicated that it was not clear whether arthritis of the knees was secondary to lupus, because the Veteran also had degenerative joint disease. The VA examiner indicated that the Veteran had Raynaud's phenomenon once a week. She described typical color changes of the hands and toes. She reported that her hands and feet got cold and she developed paleness and later redness and then cyanosis, in addition to a sensation of pins and needles. The February 1999 VA examiner indicated that lupus was minimally active at the present time. He indicated that Raynaud's disease was associated with lupus. The VA examiner indicated that Raynaud's disease was minimally to moderately active. In a March 2006 letter, a VA physician indicated that the Veteran was under treatment for systemic erythematosus and rheumatoid arthritis overlap syndrome. The physician noted that the Veteran was required to be monitored in the rheumatoid clinic every six to eight weeks. A VA outpatient treatment record dated in April 2006 reflects that the Veteran reported that she had noticed itchy multiple papules on her face, anterior chest and thighs, soreness in her mouth and increasing arthralgia in the joints, especially the knees and hands. Assessment was rhupus with a flare up with more arthralgia, intermittent pleurisy/ Raynaud's inflammatory arthritis with synovitis in the knees, elbows and shoulders. In May 2006, the Veteran was seen for follow up by a VA rheumatologist. The record noted Prednisone was increased following a flare in April. The Veteran reported feeling a little better overall and still getting swelling in the ankles and pain in the feet. She reported that she had a rash and was using triamcinolone cream. She denied chest pain or mouth sores. Assessment was flare resolving after increasing prednisone to 10 milligrams daily. A VA outpatient treatment note dated in October 2006 reflects that the Veteran reported pain in her knees and ankles, as well as her hands and wrists from "time to time." She reported that morning stiffness was present but not too bad. She reported no current mouth ulcers, fevers, chest pain or nausea. Assessment was rhupus. The physician indicated that the Veteran's disease was still active with elevated esr and disease evident on examination and symptoms present on the current dose. In a statement dated in January 2008, a VA physician indicated that she had treated the Veteran for five years. The medications included Methotrexate and prednisone, which have severe side effects. The VA physician indicated that the Veteran's ability to do physical work was limited due to severe joint pain and the effects of her medications. The VA physician noted that the Veteran had cognitive deficits, which were the result of her primary conditions, in addition to sleep apnea. The physician indicated that the Veteran suffers from Raynaud's disease. The Veteran had a VA examination in January 2008. The Veteran reported that her generalized arthralgia was worse. She reported more pain and stiffness. She reported that her current symptoms included Raynaud's of the bilateral hands and toes and arthralgia of most joints. The Veteran reported that she was medically retired. The VA examiner noted that SLE limited physically active employment. The Veteran took pain medications to control pain, and this prevented sedentary employment. The VA examiner indicated that the side effects of pain medications included decreased ability to concentrate and short-term memory loss. A VA rheumatology note dated in April 2008 reflects that the Veteran complained of being a little achy, mostly in her knees and right wrist. She reported that her symptoms were otherwise stable (morning stiffness). She denied chest pain, shortness of breath, dyspnea on exertion, cough, oral ulcers and vision changes. In a statement dated in August 2008, the Veteran indicated that she experienced exacerbations of SLE lasting a week or more, two or three times a year. A June 2010 VA treatment note reflects that the Veteran denied joint pain or morning stiffness and was doing well. She denied ulcers, alopecia, chest pain and shortness of breath. A VA rheumatology follow-up note dated in September 2010 reflects that the Veteran reported occasional knee pain but otherwise denied joint pain or swelling. She denied morning stiffness, oral, ulcer, skin rash or hair loss. She reported occasional Raynaud phenomenon. She denied recent infections of side effects from medications. The physician indicated that there was no evidence of organ threatening disease. A VA rheumatology clinic note dated in May 2012 reflects that the Veteran reported morning stiffness, and increased pain and swelling of the hands and knees. She reported that Raynaud's was stable. She denied any other systemic complaints and reported no fevers, no chills and no chest pain. The Veteran had a VA examination in February 2011. The Veteran reported that she was diagnosed with lupus erythematosus in 1994. She reported that Raynaud's began before lupus. The VA examiner noted that Raynaud's phenomenon is directly associated with SLE, as 30 percent of patients with SLE have Raynaud's. The VA examiner indicated that it is not uncommon for patients to have Raynaud's as their first symptoms of SLE, and this is the case for the Veteran. The Veteran noted that she had Raynaud's approximately one to two times per month. The episodes lasted for 10 to 15 minutes, but they could last for up to 45 minutes. During an episode of Raynaud's, the Veteran was unable to use her hands or walk without pain. She reported that the last episode of Raynaud's was one week prior to the examination. The physician who performed the February 2011 VA examination provided an addendum opinion in June 2012. The VA examiner opined that the systemic lupus erythematosus is controlled, and the Veteran did not have acute flares or frequent exacerbations. The VA examiner stated that, based upon the review of her most recent visit to the rheumatology clinic at the VA medical center, the SLE is stable and no changes in treatment were recommended by the rheumatology staff. The VA examiner indicated that the Veteran was diagnosed with rheumatoid arthritis in 2005, and in 2011, it was found that this condition had progressed. She was now diagnosed with erosive rheumatoid arthritis. The VA examiner indicated that a note from the Denver VAMC dated in May 2012 showed that the Veteran's disease was highly active and poorly controlled. The treatment plan included starting a newer medication to bring her condition under better control. The VA examiner also noted that the Veteran did not have significant impairment of vision. The VA examiner stated that, with some patients diagnosed with these two rheumatoid conditions, rheumatoid arthritis and systemic lupus erythematosus, they are considered to have an overlap of these conditions. This overlap condition is termed RHUPUS. The VA examiner further indicated that, at this time, the Veteran did not have acute flares or frequent exacerbations of lupus. The VA examiner indicated that the condition did not cause significant impairment of her health. The VA examiner noted, on the other hand, that rheumatoid arthritis is poorly controlled and highly active. The VA examiner indicated that the Veteran has daily symptoms of pain and stiffness involving her hands and knees that can last for up to 4 hours each morning. The VA examiner noted that these rheumatoid symptoms cause impairment of routine function with difficulty walking and difficulty holding or manipulating objects in her hands. The VA examiner opined that this causes significant disability and impairment. The June 2012 VA examiner noted that systemic lupus erythematosus can affect any organ system or type of tissue. The VA examiner indicated that, when the central nervous system is involved, systemic lupus erythematosus can cause inflammation of the brain resulting in encephalitis. The VA examiner indicated that memory loss with SLE, or "lupus fog", is a cognitive impairment sometimes associated with this disorder. The VA examiner observed that the rheumatologist at the last VA visit in May 2012 noted that there were no neurological impairments. The VA examiner indicated that the Veteran is taking the medication plaquenil for control of her rheumatological conditions and has to have her eyes checked regularly. The VA examiner noted that this examination is to check for side effects from medications. The VA examiner indicated that, based on the clinic visit note, the Veteran does not have new conditions involving her eyes and has no significant impairment of her vision. Pursuant to the May 2012 remand, the case was referred for extraschedular consideration. In April 2013, the Director of Compensation and Pension reviewed the claim and determined that entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) was not warranted. In the review of the claims file, the opinion noted that the June 2012 addendum report indicated that SLE symptoms have no current acute flare-ups or frequent exacerbations and cause no significant impairment to health. The opinion noted that the Veteran's rheumatoid arthritis, which is not part of her service-connected disability, was reported as poorly controlled and found with significant increased symptoms that have required changes in treatment. In this case, the Board finds that the requirements for an initial rating in excess of 60 percent under DC 6350 have not been met, as the weight of the evidence is against a finding of frequent exacerbations of systemic lupus erythematosus producing severe impairment of health. In this regard, the 1999 VA examination reflects that the Veteran reported a history of a flare-up 3 to 6 months prior. A written statement from the Veteran dated in 2008, noted exacerbations of systemic lupus erythematosus 2 to 3 times a year. The June 2012 addendum opinion concluded that the Veteran does not have acute flares or frequent exacerbations of systemic lupus erythematosus producing severe impairment of health. The VA examiner concluded that there is significant impairment due to rheumatoid arthritis and that systemic lupus erythematosus is not manifested by frequent exacerbations, producing severe impairment of health. The Board notes that the June 2012 opinion indicated that the Veteran has significant impairment due to rheumatoid arthritis, which is not a service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102, which requires that reasonable doubt on any issue be resolved in the veteran's favor, clearly dictates that such signs and symptoms be attributed to service-connected condition). The VA examiner noted that the Veteran has an overlap condition called RHUPUS, but the VA examiner distinguished the impairment associated with rheumatoid arthritis and systemic lupus erythematosus. The Board acknowledges that the Veteran has reported eye problems and memory loss due to systemic lupus erythematosus. The Veteran is competent to report her symptoms. The question of specific of whether specific eye and memory impairments are related to service-connected systemic lupus erythematosus involves a complex medical issue that the Veteran is not competent to address. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the June 2012 VA examination considered such impairments in determining whether there are frequent exacerbations of systemic lupus erythematosus producing severe impairment of health. The VA examiner concluded that there were no neurological impairments or significant vision impairments associated with systemic lupus erythematosus. The Board has considered whether a rating in excess of 60 percent is assignable under DC 7117, pertaining to Raynaud's disease. The Board finds that the requirements for a 100 percent rating under that DC 7117 are not met, as the evidence of record does not establish that Raynaud's disease is manifested by two or more digital ulcers plus autoamputation of one or more digits and a history of characteristic attacks. For these reasons, the Board concludes that there is a preponderance of the evidence against the appeal for an initial rating in excess of 60 percent for systemic lupus erythematosus. The case was referred to the Director of Compensation and Pension for extraschedular consideration, but it was determined that the Veteran was not entitled to an increased rating on an extraschedular basis. As there is a preponderance of the evidence against the appeal for an initial rating in excess of 60 percent, the claim must be denied, and there remains no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, in the May 2012 remand, the Board determined that referral for extraschedular consideration was warranted due to the complexity of the case and evidence of marked interference with the Veteran's employment. In February 2013, the Director of Compensation and Pension denied entitlement to an extraschedular evaluation for systemic lupus erythematosus, concluding that the evidence did not show that the Veteran's service-connected systemic lupus erythematosus with Raynaud's disease was so exceptional or unusual as to render the use of the regular rating schedule standards impractical. The opinion indicated that medical records show that the Veteran's systemic lupus erythematosus is under good control, without cause of any additional impairment to health and no periods of necessitated hospitalization and not the current cause of significant limitations with employment. After a careful review of the record, the Board concludes that entitlement to an extraschedular rating in excess of 60 percent for systemic lupus erythematosus is not warranted. The Veteran was award TDIU effective as of September 11, 2006, which fully recognizes extraschedular impairment due to systemic lupus erythematosus, as TDIU is an extraschedular rating. With regard to the time period prior to September 11, 2006, the evidence reflects that the Veteran was last employed in June 2006. Social Security records indicate that the Veteran stopped working due to both service-connected and non-service-connected disabilities, which include rheumatoid arthritis, osteoarthritis, asthma, systemic lupus erythematosus and Raynaud's syndrome. Prior to September 2006, the weight of the evidence demonstrates that the cause of any marked interference with employment was not solely due to the due to service-connected systemic lupus erythematosus. The evidence does not demonstrate frequent periods of hospitalization due to service-connected systemic lupus erythematosus. For these reasons, the Board concludes that there is a preponderance of the evidence against the assignment of a rating in excess of 60 percent for systemic lupus erythematosus on an extraschedular basis. ORDER Entitlement to an initial rating in excess of 60 percent for systemic lupus erythematosus (SLE) is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs