Citation Nr: 1330524 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 09-23 728 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a rating in excess of 30 percent for human immunodeficiency virus (HIV)-related illness. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from April 1989 to April 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, continued a 30 percent evaluation for the Veteran's HIV-related illness. The case was previously before the Board in March 2012 when it was remanded for additional development. It has now returned to the Board for further appellate action. FINDING OF FACT The Veteran's HIV-related illness is treated with approved medication and manifests a CD4 cell count less than 200 without refractory constitutional symptoms, diarrhea, pathological weight loss, or acquired immune deficiency syndrome (AIDS)-related opportunistic infection or neoplasm. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for HIV-related illness are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.88b, Diagnostic Code 6351 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection for HIV-related illness was awarded effective November 15, 1999 with an initial 30 percent evaluation assigned. The September 2008 rating decision on appeal continued the current 30 percent evaluation. As a preliminary matter, the Board notes that the Veteran's original paper claims file was misplaced when the case was recently sent to the St. Louis VA Medical Center (VAMC) for the scheduling of a VA examination. To the extent possible, the claims file was rebuilt; however, some procedural documents are missing from the record. The Board will proceed with a decision in this case based on the available evidence which appears to include the Veteran's complete VA treatment records. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected disability is currently rated as 30 percent disabling under Diagnostic Code 6351 pertaining to HIV-related illness. Under this diagnostic code, a 30 percent evaluation is assigned for recurrent constitutional symptoms, intermittent diarrhea, and on approved medication(s), or; minimum rating with T4 cell count less than 200, or Hairy Cell Leukoplakia, or Oral Candidiasis. A 60 percent evaluation is assigned for refractory constitutional symptoms, diarrhea, and pathological weight loss, or; minimum rating following development of AIDS-related opportunistic infection or neoplasm. A maximum 100 percent rating is assigned for AIDS with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems; HIV-related illness with debility and progressive weight loss, without remission, or few or brief remissions. 38 C.F.R. § 4.88b, Diagnostic Code 6351 (2013). After review of the evidence, the Board finds that the Veteran's HIV-related illness most nearly approximates the criteria associated with a the current 30 percent rating. Treatment records from the St. Louis VAMC show that the Veteran has complained of fatigue and some memory loss associated with HIV, but he has not manifested weight loss, skin rashes, or diarrhea at anytime during the claims period. He has also not reported any refractory constitutional symptoms during infectious disease consultations performed at the VAMC. Although the Veteran has undergone treatment for asthma, in April 2012, his VA physician found that the pulmonary disease was due to some other myobacteria, indicating it was not related to HIV. There is also no evidence of opportunistic infection or neoplasm. The Veteran has manifested a tongue lesion since August 2010, but his VA doctor determined that it was fungal in nature. The lesion has occasionally increased in size at various times during the claims period (most recently in April 2012), but has responded well to medication and there is no competent evidence characterizing the lesion as an infection or neoplasm. In fact, in October 2011, the Veteran's VA physician described the lesion as a "form candida." Oral candidiasis, such as the Veteran's tongue lesion, are contemplated by the current 30 percent evaluation. The Veteran's other symptoms and treatments for HIV are also associated with the current 30 percent rating. Throughout the claims period, he has undergone highly active antiretroviral therapy (HAART), i.e. approved medication. While his physician found that he was experiencing virologic and immunologic failure in September 2011, the Veteran's low CD4 (T-helper white blood cells) count was a result of his own suboptimal compliance with medication. Similarly, in November 2011, the Veteran's HIV was characterized as advanced, but again, due to his own noncompliance with the prescribed medication regime. The Veteran's CD4 counts have also consistently measured below 200 throughout the claims period, until most recent laboratory testing in October 2012 indicated improved levels to above 200. Since April 2012, the Veteran has adhered to his medication regime and has demonstrated improvement in HIV-related symptoms. These treatment and symptoms are contemplated by the current 30 percent rating. In short, the Veteran's symptoms, treatment, and laboratory manifestations of the service-connected HIV-related illness have all most nearly approximated the current 30 percent rating throughout the claims period. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court of Appeals for Veterans Claims (Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's HIV-related illness demonstrates symptoms such as depressed CD4 levels, a fungal tongue lesion, and fatigue, but these manifestations are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the disability and referral for consideration of extraschedular rating is not warranted. The Veteran was also awarded entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU) in a December 2011 rating decision, effective June 12, 2009. Thus, the Board need not discuss whether a claim for TDIU was raised along with the current appeal for an increased rating in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in an April 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the April 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA treatment. As noted above, the Veteran's claims file was recently rebuilt, but there is no indication that the Veteran has undergone any private treatment for his HIV-related illness. Complete records from the St. Louis VAMC are also associated with the Veteran's virtual claims file. The Board also finds that VA has complied with its March 2012 remand orders. In response to the Board's remand, the Veteran's complete records from the St. Louis VAMC were obtained and added to the virtual claims file. The Veteran was also scheduled for a VA examination in July 2013 to determine the severity of the service-connected HIV-related illness. The Veteran failed to report for the VA examination and has not provided any bases for his failure to appear. When a claimant fails without good cause to report for a necessary examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with a claim for an increase, the claim shall be denied. 38 C.F.R. § 3.655(a), (b). However, in this case due to the misplacement of the Veteran's paper claims file, the Board has not summarily dismissed the Veteran's claim for a higher rating based on his failure to appear for a VA examination, and has instead rated his disability based on the current record. The case was also readjudicated in an August 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to a rating in excess of 30 percent for HIV-related illness is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs