Citation Nr: 1329335 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 04-11 880A ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for HIV-related illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from December 1979 to December 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an February 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, in which the RO granted the Veteran service connection for HIV-related illness and assigned an initial 10 disability rating. During the course of the appeal, jurisdiction over the Veteran's claim was transferred to the San Diego RO. The Board subsequently remanded the case in February 2008 to provide the Veteran with a hearing before a Veterans Law Judge. The AOJ subsequently scheduled a hearing, and the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO in June 2013. A transcript of the hearing has been associated with the Veteran's claims file. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDING OF FACT Since the effective date of service connection, the Veteran's HIV-related illness has likely been manifested by recurrent constitutional symptoms, intermittent diarrhea, and the need for approved medication. CONCLUSION OF LAW Since the award of service connection, the criteria for a rating of 30 percent for the Veteran's HIV-related illness have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.88b, Diagnostic Code 6351 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23,353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) Here, the Board finds that all notification and development action needed to arrive at a decision on the claim on appeal has been accomplished. In this respect, through a February 2002 notice letter, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also finds that the February 2002 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned February 2002 notice letter. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the February 2002 notice letter. The Board notes that VCAA notice is not required with respect to every aspect of a claim raised by a claimant. If, for example, a Veteran files a claim for service connection for a disability, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (holding that when a claim for service connection has been proven, the purpose of § 5103(a) has been satisfied, and notice under its provisions has been satisfied). The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A. Id. Here, the Veteran's claim for a higher initial rating falls squarely within this pattern. Thus, no additional VCAA notice was required with respect to the claim on appeal. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. Records of the Veteran's post-service treatment are of record. In addition, the Veteran was afforded VA examinations in March 2002, June 2010, and August 2012; reports of those examinations are of record. In that connection, the Board notes that 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). As noted below, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran, and document that the examiners conducted full physical examination of the Veteran. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his claim. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claim that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran contends that his HIV-related illness has been more disabling than indicated by the assigned rating. He therefore contends that a higher rating is warranted. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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, 125-26 (1999). The relevant medical evidence of record concerning the Veteran's claim for an initial rating in excess of 10 percent for HIV-related illness consists of reports of VA examinations conducted in March 2002, June 2010, and August 2012, as well as records of his ongoing treatment for his HIV and HIV-related illness. Report of the March 2002 examination reflects that the Veteran complained of experiencing occasional diarrhea as a side effect of the anti-retroviral medications he was taking to treat his HIV. He also complained that he experienced constant fatigue, which the examiner also linked to his medications. The examiner acknowledged that the Veteran experienced both diarrhea and fatigue linked to his HIV medications, as well as some redistribution of fat around his body, but noted that his T4 cell count was stable and high and his viral load was undetectable. No constitutional symptoms were noted. Report of the June 2010 VA examination reflects that the Veteran complained of experiencing fatigue secondary to his anti-retroviral medication but otherwise identified no symptoms of HIV-related illness. In particular, he reported experiencing no recurrent opportunistic infection and no constitutional symptoms such as fever, chills, or weight loss. To the contrary, he reported that his weight had not fluctuated in five years. He did complain of occasional loose stool approximately once per month. The examiner noted that recent blood testing had shown a T4 cell count of 651. The Veteran reported working full time, and the examiner noted no functional limitation from his HIV-related illness. Similarly, report of the August 2012 VA examination reflects that the Veteran reported being "asymptomatic" at the time of examination. He reported being on anti-retroviral medications to treat his HIV. The examiner found the Veteran to experience recurrent, but not refractory, constitutional symptoms, in particular fatigue. The examiner also noted that the Veteran had experienced oral candidiasis, herpes simplex, and hepatitis in the past but was not experiencing such disorders currently. No opportunistic infections or neoplasms were noted. The examiner concluded that the Veteran's HIV-related illness was "Level I - Asymptomatic." In particular, the examiner noted that the Veteran was working full time and concluded that his HIV-related illness did not impact his ability to work. The Veteran's records of ongoing treatment for his HIV- related illness reflect that he has continued to seek treatment for purposes of managing his HIV and related illness. Blood tests conducted multiple times per year throughout the course of the appeal reflect that the Veteran's T4 cell count has been, at worst, 560, in January 2006, and has often been significantly higher-as much as 1049 in February 2011. Similarly, his viral load has been reported on multiple occasions as "undetectable," as in August 2011, or "suppressed," in May 2012. He was treated in March 2005 for an occurrence of oral candidiasis, which responded well to medication and has not recurred since that time. He continues to report to his physicians that he is working full time and has not been noted to complain of any constitutional symptoms such as fever, chill, weight loss, nausea, or vomiting. Similarly, no opportunistic infections or neoplasms have been noted at any treatment visit at any time during the appeal period. The Veteran also testified before the undersigned Veterans Law Judge at a hearing in June 2013. At that time, he stated that he had experienced intermittent diarrhea for the past ten years. The Veteran further stated that his most severe symptom is fatigue, which he stated is constant and often requires him to come home and take a nap immediately upon leaving work. He described the fatigue as feeling like he had "an anchor on me all the time" and stated that it worsened with stress or any physical activity. He also reported having experienced one bout of oral candidiasis in 2005 but denied having experienced any recurrence since that time. The Veteran's HIV-related illness has been rated under 38 C.F.R. § 4.88b, Diagnostic Code 6351 (2013). Under that Diagnostic Code, a 10 percent rating is warranted where the HIV-related illness results in definite medical symptoms, a T4 cell count of 200 or more and less than 500, and requires approved medication(s), or when the illness is accompanied by depression or memory loss with employment limitations. 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 T4 cell count less than 200, or hairy cell leukoplakia, or oral candidiasis. A 60 percent rating is assignable 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. Finally, 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 (1) to Diagnostic Code 6351 defines "approved medication(s)" to include medications prescribed as part of a research protocol at an accredited medical institution. 38 C.F.R. § 4.88b, Diagnostic Code 6351, Note (1). Note (2) explains 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 combination with percentages otherwise assignable in accordance with the above criteria. 38 C.F.R. §§ 4.14, 4.88b, Diagnostic Code 6351, Note (2). Upon review of the relevant evidence of record, the Board finds that the Veteran's HIV-related illness warrants an initial disability rating of 30 percent. For the entirety of the appeal period, the Veteran has not been shown to have a minimum T4 cell count less than 200, or hairy cell leukoplakia, or (with one exception in March 2005) oral candidiasis. Nevertheless, as noted above, a 30 percent rating is also warranted for recurrent constitutional symptoms, intermittent diarrhea, and the need for daily use of approved medications. The record clearly establishes that the Veteran has suffered from recurrent constitutional symptoms, including in particular fatigue, and which has been linked to the medications he takes for his HIV-related illness. Additionally, he has been on a regular regimen of prescription anti-retroviral medication for HIV during the majority of the relevant appeal period. Further, the Veteran complained of intermittent diarrhea at his June 2013 hearing before the undersigned Veterans Law Judge, and he was noted to have occasional diarrhea at the March 2002 VA examination. Thus, the Board finds that the evidence tends to support a 30 percent initial rating for HIV-related illness under Diagnostic Code 6351 for the entirety of the appeal period. However, the Board finds that the preponderance of the evidence is against an initial rating in excess of 30 percent under Diagnostic Code 6351 for the Veteran's illness. The evidence of record does not reflect refractory constitutional symptoms, diarrhea, and pathological weight loss, or AIDS-related opportunistic infection or neoplasm, as would warrant the higher rating of 60 percent. In this regard, the Board observes that the Veteran's weight has remained relatively stable during the relevant time period; the Veteran himself reported at his June 2010 VA examination that his weight had remained stable for the past five years. Therefore, the Board finds that the Veteran has not presented clinical evidence of pathological weight loss. With respect to diarrhea, the Board notes that diarrhea and pathological weight loss are stated in the conjunctive, and therefore both conditions must be met to satisfy the criteria. As the Board has found that pathological weight loss is not present, the presence of diarrhea is not sufficient by itself to warrant a higher disability rating. Moreover, as noted above, diarrhea is also a criterion for the 30 percent level, when it is intermittent. The clinical evidence clearly shows that while the Veteran has intermittently suffered from diarrhea during the appeal period, the Veteran himself has stated that it is not always present. Thus, the Board finds that the relevant clinical evidence shows diarrhea on no more than an intermittent basis consistent with the 30 percent rating assigned herein. Finally, neither the Veteran's treatment providers nor his VA examiners have diagnosed AIDS-related opportunistic infection or neoplasms, as would warrant a 60 percent rating, at any point during the appeal period. The Board thus finds that the preponderance of the evidence is against a disability rating in excess of 30 percent for the Veteran's HIV-related illness at any time during the appeal period. The above determinations are based on consideration of the applicable provisions of VA's rating schedule. The Board also finds that at no time has the disability under consideration been shown to be so exceptional or unusual as to warrant consideration of any higher rating on an extra- schedular basis. See 38 C.F.R. § 3.321(b)(1). Here, there is an absence of evidence of marked interference with employment (i.e., beyond that contemplated in the assigned evaluation), frequent periods of hospitalization, or evidence that the Veteran's service-connected HIV-related illness-without consideration of other disabilities-has rendered impractical the application of the regular schedular standards. His symptoms are all specifically contemplated by the criteria discussed above. In addition, the Veteran continues to work full time, and his VA examiners have found his HIV-related illness to have no functional impact on his ability to work. Thus, the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Furthermore, it bears emphasis that the schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (2013). Thus, based on the record before it, the Board does not find that the medical evidence demonstrates any unusual disability with respect to the claim that is not contemplated by the rating schedule. The very symptoms the Veteran experiences are all addressed by the rating schedule. Thun v. Peake, 22 Vet. App. 111 (2008). As a result, the Board concludes that a remand to the RO for referral of the rating issue to the VA Central Office for consideration of extra-schedular evaluation is not warranted. For all the foregoing reasons, the Board finds that the Veteran's service-connected HIV-related illness warrants an initial rating of 30 percent. This is so for the entirety of the appeal period. 38 C.F.R. §§ 4.3, 4.7, 4.88b, Diagnostic Code 6351 (2013). In reaching this conclusion, the Board has considered the applicability of the benefit- of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a rating higher than that assigned herein, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating of 30 percent for HIV- related illness is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs