Citation Nr: 1326236 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-05 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable rating prior to June 4, 2011 and in excess of 10 percent thereafter for Raynaud's syndrome. 2. Entitlement to an initial rating in excess of 10 percent prior to June 4, 2011 and in excess of 30 percent thereafter for bilateral pes planus. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1999 to July 2008 with additional service in the Air Force Reserve. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2008 and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina and Cleveland, Ohio, respectively, as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. During the course of the appeal, the claims file was permanently transferred to the RO in Cleveland, Ohio which now has jurisdiction over the claims on appeal. The RO granted service connection for Raynaud's syndrome and bilateral pes planus, both assigned as noncompensable (0 percent), effective July 4, 2008 (one day following separation from service). With regard to the service-connected Raynaud's syndrome, the RO increased the rating to 10 percent, effective June 4, 2011, in a June 2011 Supplemental Statement of the Case (SSOC). With regard to the service-connected bilateral pes planus, the RO increased the rating to 10 percent, effective July 4, 2008, in an April 2011 SSOC and to 30 percent, effective June 4, 2011, in the June 2011 SSOC. The Veteran was advised of the April 2011 and June 2011 SSOC, but did not express agreement with the decisions or withdraw the appeals. A claim for an initial or increased rating presumes the claimant is seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Because the currently assigned 0, 10, and 30 percent disability ratings are not the maximum benefits available for these service-connected disabilities, these appeals continue for the respective periods on appeal, as listed on the title page accordingly. In a February 2010 substantive appeal, via a VA Form 9, the Veteran requested a personal hearing before the Board at the RO. In September 2011, she provided written notification to withdraw the hearing request. The Board finds there is no hearing request pending at this time. 38 C.F.R. § 20.702(e) (2012). The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence. The issue of an initial rating in excess of 10 percent prior to June 4, 2011 and in excess of 30 percent thereafter for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. The issue of entitlement to dependency allowance has been raised by the record in July 2011, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. From July 4, 2008 to June 3, 2011, the service-connected Raynaud's syndrome more closely approximates a manifestation of pain, sequential color change of the digits, and no characteristic attacks occurring, at least, one to three times a week. 3. As of June 4, 2011, the service-connected Raynaud's syndrome more closely approximates a manifestation of characteristic attacks occurring, at most, one to three times a week. CONCLUSION OF LAW The criteria for an initial compensable rating prior to June 4, 2011 and in excess of 10 percent thereafter for Raynaud's syndrome have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7117 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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); 38 C.F.R. § 3.159(b). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by a May 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show she had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence she was to provide to VA and which information and evidence VA would attempt to obtain on her behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on her behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that she could obtain private records herself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the May 2008 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes VA outpatient treatment records, private treatment records, statements from the Veteran, and June 2011 VA examination report for the arteries and veins. The VA examiner reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board notes that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges that the Veteran's most recent VA examination was approximately two years ago and the Veteran's representative reported in a July 2013 brief that the Veteran believes her service-connected Raynaud's syndrome has worsened since the June 2011 VA examination. Nevertheless, an additional VA examination is not warranted in this case because neither the Veteran nor her representative has specifically noted how the disability has worsened, and there is no additional evidence of record, or evidence for VA to obtain, that indicates the disability has become more severe since the last VA examination. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Disability Rating Legal Criteria Disability evaluations are determined by the application of the schedule of ratings which is based on average impairment of earning capacity. See U.S.C.A. § 1155 (West 2002). Separate diagnostic codes identify the various disabilities. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). When entitlement to compensation has been established and a higher initial evaluation is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the Veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. Service-Connected Raynaud's Syndrome Pursuant to the rating criteria for diseases of the heart, the service-connected Raynaud's syndrome is rated as noncompensable (0 percent) from July 4, 2008 to June 3, 2011 and at 10 percent from June 4, 2011 to the present. See 38 C.F.R. § 4.104, DC 7117 (2012). Raynaud's syndrome is evaluated at 10 percent with characteristic attacks occurring one to three times a week; 20 percent with characteristic attacks occurring four to six times a week; 40 percent with characteristic attacks occurring at least daily; 60 percent with two or more digital ulcers and history of characteristic attacks; and 100 percent with two or more digital ulcers plus autoamputation of one or more digits and history of characteristic attacks. Id. "Characteristic attacks" consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias, and precipitated by exposure to cold or by emotional upsets. These evaluations are for the disease as a whole, regardless of the number of extremities involved or whether the nose and ears are involved. Id. at Note. A. Rating of 0 percent from July 4, 2008 to June 3, 2011 In a December 2008 statement, via a VA Form 21-4138, the Veteran reported her "fingers are constantly turning white even upon limited exposure to cold." A February 2009 private treatment record noted clinical findings of the Veteran's hands as cold to touch. Pursuant to private treatment for her pregnancy, the Veteran noted in July 2010 that "even in the summertime she has significant blue discoloration of her hands when the weather is cool," and in August 2010, she expressed concern about the purple discoloration in her fingers. VA outpatient treatment records from April 2009 to November 2009 are silent as to any complaints or treatment for symptoms of Raynaud's syndrome. The Board notes that a May 2008 VA general medical examination report, to include evaluation of Raynaud's syndrome, is of record. Nevertheless, the effective date for disability compensation for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service. See 38 C.F.R. § 3.400(b)(2). In this case, the claim on appeal was received in April 2008, within one year of separation from service on July 3, 2008, thus the effective date is July 4, 2008, the day following separation from service. As a result, the Board finds that any further discussion of the evidentiary record prior to July 4, 2008 will not warrant a higher rating at any time for this appeal period from July 4, 2008 to June 3, 2011. As Raynaud's syndrome with characteristic attacks, at least, one to three times a week is not shown, an initial compensable rating prior ot June 4, 2011 is not warranted under DC 7117. The Board finds the service-connected Raynaud's syndrome more closely approximates a manifestation of pain and sequential color change of the digits. Moreover, the evidence of record shows that physical findings of the Veteran's affected areas, specifically the digits, from July 4, 2008 to June 3, 2011, does not demonstrate characteristic attacks occurring, at least, one to three times a week to warrant the next higher rating. See 38 C.F.R. §§ 4.3, 4.7. B. Rating of 10 percent as of June 4, 2011 On June 4, 2011, the Veteran underwent a VA examination for arteries and veins. The Veteran reported "her fingers become white and also tur[n] purplish in color," along with some pain in the hands, and symptoms of numbness, tingling, and burning. With regard to characteristic attacks, she reported getting about 2 to 3 attacks per week lasting for about 5 to 10 minutes between 7 and 9 on a scale of 0 to 10. She also noted that while working as a social worker, she has constant patient contact and becomes embarrassed by the situation when her hands turn colors. Clinical findings of the hands revealed no ulcerations present, no amputations, fingertips were cold to touch with a "purplish, whitish" hue, radial and ulnar pulses were grade 2/2, and capillary refill was normal. The Board notes that the record does not reflect, nor does the Veteran or her representative indicate, any outstanding treatment for the service-connected Raynaud's syndrome as of June 4, 2011. As Raynaud's syndrome with characteristic attacks occurring 4 to 6 times a week or with two or more ulcers is not shown, a rating in excess of 10 percent as of June 4, 2011 is not warranted under DC 7117. The Board finds the service-connected Raynaud's syndrome more closely approximates a manifestation of characteristic attacks occurring one to three times a week. Moreover, the evidence of record shows that physical findings of the Veteran's affected areas, specifically the digits, as of June 4, 2011 do not demonstrate characteristic attacks occurring four to six times a week to warrant the next higher rating. See 38 C.F.R. §§ 4.3, 4.7. C. Additional Considerations The Board has considered the Veteran's reported history of symptomatology regarding this service-connected disability, as noted above. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes through her senses and observations. Layno, 6 Vet. App. at 470. She is not, however, competent to identify a specific level of disability of her disability according to the appropriate diagnostic code. In this decision, the Board has considered both the lay statements and medical opinions regarding the degree of impairment caused by the Raynaud's syndrome. Next, the Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, with respect to the claim as required by the Court. See Schafrath, 1 Vet. App. at 594. However, after careful review of the available diagnostic codes and the lay and medical evidence of record, the Board finds there are no other diagnostic codes that provide a basis to assign ratings higher than the currently assigned evaluations for the service-connected disability on appeal for any period. The Board considers and finds the award of a total disability rating based on individual unemployability (TDIU) due to the service-connected Raynaud's syndrome is not warranted for any period. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In fact, at the June 2011 VA examination for the feet, the Veteran reported working as a social worker, thus supports a finding that she is employed. Additionally, an extra-schedular rating may be provided in exceptional cases. 38 C.F.R. § 3.321 (2012). The threshold factor for extra-schedular 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, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 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 extra-schedular rating. In this case, the Board finds that the schedular rating criteria does not adequately contemplate and describe the symptoms and impairment caused by the service-connected Raynaud's syndrome. Specifically, the Veteran informed the June 2011 VA examiner that she becomes embarrassed by the situation when her hands turn colors. Symptoms, such as embarrassment, is not contemplated under DC 7117. Thus, the Board turns to the second step of the inquiry and finds the Veteran's exceptional disability picture does not exhibit other related factors such as marked interference with employment and frequent periods of hospitalization. The evidence of record does not indicate, nor does the Veteran or her representative assert, that she has significant disturbances during employment or frequently undergoes hospitalization due to her Raynaud's syndrome. For these reasons, referral for extra-schedular consideration for the service-connected disability on appeal is not required. ORDER An initial compensable rating prior to June 4, 2011 and in excess of 10 percent thereafter for Raynaud's syndrome is denied. REMAND A remand is required for the issue of an initial rating in excess of 10 percent prior to June 4, 2011 and in excess of 30 percent thereafter for bilateral pes planus to ensure there is a complete record upon which to decide. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The last, and only, VA examination for the feet was on June 4, 2011. The Veteran reported pain with prolonged walking and standing, some fatigue by end of the day, and use of shoe inserts. Clinical findings revealed, in pertinent part, tenderness of the medial arch, 10 degrees of valgus deformity, and no painful motion or pain on manipulation of the Achilles tendon. Since then, a November 2011 private treatment record notes, specifically, the Veteran had been wearing orthotics with no improvement and objective findings revealed pain along the Achilles tendon. In the July 2013 brief, the Veteran's representative reported the Veteran states she needs new orthotics and continues to complain about pain in her feet. Because VA undertook to provide a VA examination for this claim on appeal, the Board must ensure that the examination report is adequate in order to render a fully informed decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is evidence of record since the June 2011 VA examination for the feet that suggests a worsening of bilateral pes planus, so an additional examination is deemed necessary to ascertain the nature and current severity of this service-connected disability. VA's General Counsel has interpreted that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95. Accordingly, this issue is REMANDED for the following actions: 1. Schedule the Veteran for the appropriate VA examination to determine the nature and current severity of her bilateral pes planus. The relevant documents in the claims file should be made available to the VA examiner for review. All indicated studies and tests, deemed necessary by the examiner, should be performed and all pertinent symptomatology should be reported in detail. The VA examiner should also request a history from the Veteran. A notation to the effect that the record review and history took place should be included in the examiner's report. A rationale should be given for all findings and conclusions expressed. If an opinion or the requested information cannot be provided without resorting to speculation, the VA examiner should state so and explain why it would be speculative to respond. 2. Thereafter, the issue of an initial rating in excess of 10 percent prior to June 4, 2011 and in excess of 30 percent thereafter for bilateral pes planus should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and her representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs