Citation Nr: 1342525	
Decision Date: 12/23/13    Archive Date: 12/31/13

DOCKET NO.  05-08 594	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to a disability rating in excess of 20 percent for Addison's disease, prior to January 21, 2009. 


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 

INTRODUCTION

The Veteran served on active duty from March 1982 to June 1985. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  The case was later transferred to the jurisdiction of the Montgomery, Alabama RO.

The Veteran testified at a hearing in February 2006 before a Decision Review Officer of the RO, and testified at a Board Video-Conference hearing in September 2007 before the undersigned Veterans Law Judge.  In April 2008 the Board remanded the case to the RO for further development. 

In an October 2010 decision the Board denied an increased disability rating in excess of 20 percent for Addison's disease, and denied a claim for TDIU.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2011 Order, the Court granted a joint motion of the parties (the appellant and Secretary of VA) to vacate the October 2010 Board decision and remand the case to the Board for readjudication consistent with the content of the motion.  

In May 2012, the Board granted the Veteran a TDIU and increased his disability rating to 40 percent for his service-connected Addison's disease, effective from January 21, 2009.  The Veteran appealed only the denial of a rating in excess of 20 percent for Addison's disease prior to January 21, 2009 to the Court.  In an April 2013 Order, the Court granted a joint motion of the parties (the appellant and Secretary of VA) to vacate the portion of the Board's decision concerning only the entitlement to a disability rating in excess of 20 percent prior to January 21, 2009, and again remanded the case to the Board for readjudication consistent with the content of the motion.  



FINDING OF FACT

Prior to January 21, 2009, the evidence, including the Veteran's reported symptoms, does not show his Addison's disease resulted in three crises during any one-year period of time or five episodes during any one-year period of time.  


CONCLUSION OF LAW

Prior to January 21, 2009, the schedular criteria have not been met for a disability rating in excess of 20 percent for Addison's disease.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.10, 4.85, Diagnostic Code 7911 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.  Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide.  38 C.F.R. § 3.159(b).  

VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA.  See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).  VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

In this decision, the VCAA duty to notify was satisfied by way of letters sent to the appellant between April 2003 and May 2008, which in combination fully addressed the notice elements.  The RO informed the Veteran of the specific criteria to substantiate his claim for an increase in the rating for his service-connected Addison's disease.  These letters informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence.  The RO has also provided adequate notice of how effective dates are assigned and the claim was readjudicated most recently in a May 2010 supplemental statement of the case.  

VA 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 (West 2002); 38 C.F.R. § 3.159 (2013).  

In this regard, the RO has obtained VA treatment records.  VA also has obtained service treatment reports and VA and private clinical reports and reports from the Social Security Administration.  The Veteran also was afforded VA examinations regarding his rating claim.  

The appellant has not 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 appellant is required to fulfill VA's duty to assist the appellant 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).

VA also provided the Veteran with an opportunity to present testimony on appeal at a Board hearing before a Veteran Law Judge, which was conducted in September 2007.  In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that there are two duties imposed by 38 C.F.R. § 3.103(c)(2), (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked are not impacted by the Veteran's receipt of letter that complies with VA's duty to notify.  Here, during the September 2007 hearing, the Veterans Law Judge discussed the elements that were lacking to substantiate the Veteran's claim and the Veteran's representative demonstrated actually knowledge of this information.  The representative's questions specifically elicited responses designed to show that the Veteran's understood the criteria necessary to substantiate his claim.  See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what was necessary to substantiate his or her claim.).  Accordingly, the Veteran is not shown to be prejudiced on this basis.  

II.  Merits of the Addison's Disease Increased Rating Claim

The Veteran maintains that the symptoms of his Addison's disease, and frequency of episodes of those symptoms, warrant a higher disability rating than the 20 percent assigned prior to January 21, 2009.  As the Board's prior May 2012 decision granted an increased rating of 40 percent, effective from January 21, 2009, and the Veteran did not appeal that determination to the Court, the period since January 21, 2009, need not be discussed.  

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Evaluations of a service-connected disability require review of the entire medical history regarding the disability.  38 C.F.R. §§ 4.1, 4.2.  If there is a question that arises as to which evaluation to apply, the higher evaluation is for application if the disability more closely approximates the criteria for that rating; otherwise, the lower rating is for assignment.  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.  In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

On evaluating the condition of a service-connected disability, if it is not possible to separate the effects of a service-connected condition from that of a nonservice-connected condition, then 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the Veteran's favor; that is, any such ambiguity as to the origin of such signs and symptoms shall be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Thus, if any symptoms cannot be distinguished as between service-connected and nonservice-connected symptomatology, the Board will consider both as service-connected disability.  Id.

The Veteran's statements describing the symptoms and frequency of episodes of his service-connected Addison's disease are deemed competent evidence to the extent he has knowledge of such facts and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2) (2013); Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria.  

In this regard, the Board is charged with the duty to assess the credibility and weight given to any evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998).  The Board has the responsibility to weigh and assess all of the evidence on file.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

When considering whether lay evidence is satisfactory, the Board may properly consider such factors as the internal consistency or inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the lack of contemporaneous medical records does not, in and of itself, render lay testimony not credible. Id. at 1336.  As a finder of fact, however, the Board may weigh the absence of contemporaneous records when assessing the credibility of the lay evidence.  

The criteria for rating disability due to Addison's disease (adrenal cortical hypofunction) provide that a 20 percent rating is assigned for one or two crises during the past year, or two to four episodes during the past year, or weakness and fatigability, or corticosteroid therapy required for control.  38 C.F.R. § 4.119, Diagnostic Code 7911 (2013).  A rating of 40 percent is assigned when there are three crises during the past year, or five or more episodes during the past year.  Id.  A 60 percent rating is assigned for four or more crises during the past year.  Id. 

Note (1) to Diagnostic Code 7911 provides that an Addisonian "crisis" consists of the rapid onset of peripheral vascular collapse (with acute hypotension and shock), with findings that may include: anorexia; nausea; vomiting; dehydration; profound weakness; pain in abdomen, legs, and back; fever; apathy, and depressed mentation with possible progression to coma, renal shutdown, and death. 38 C.F.R. § 4.119, Diagnostic Code 7911 at Note (1). 

Note (2) to Diagnostic Code 7911 provides that an Addisonian "episode," for VA purposes, is a less acute and less severe event than an Addisonian crisis and may consist of anorexia, nausea, vomiting, diarrhea, dehydration, weakness, malaise, orthostatic hypotension, or hypoglycemia, but no peripheral vascular collapse.  Id. at Note (2).

Addison's disease is a chronic type of adreno-cortical insufficiency, characterized by symptoms including hypotension, weight loss, anorexia, weakness, and bronze-like hyperpigmentation of the skin, which is due to an autoimmune or tuberculosis induced destruction of the adrenal cortex, which results in deficiency of aldosterone and cortisol, and is fatal in the absence of replacement therapy.  See Dorland's Illustrated Medical Dictionary 535 (31st ed. 2007). 

Here, the Board finds that in light of schedular rating criteria the competent evidence on file warrants no more than the existing 20 percent disability rating prior to January 21, 2009.  38 C.F.R. § 4.119, Diagnostic Code 7911.

Addison's disease was diagnosed and treated with steroids during service.  In a September 1985 rating decision the RO granted service connection for Addison's disease and assigned a 20 percent rating, which was in effect until January 21, 2009. 

The report of a May 2003 VA examination shows that the Addison's disease had been treated with Florinef and hydrocortisone.  The Veteran denied having a history of crises manifested by peripheral vascular collapse.  He reported that he generally increased his dose of steroids if he had any episodes of nausea or vomiting.  He reported that the disease had been stable since receiving steroid therapy, and that he felt better within one month of the in-service steroid therapy.  The Veteran reported that he was easily fatigued and had chronic gastric reflux, which he attributed to his steroid therapy.  He denied having any malignancies or visual, neurologic or cardiovascular problems, and he reported having a somewhat increased weight. 
 
Examination revealed normal muscle strength, stable blood pressure, and no excessive pigmentary changes.  The examiner concluded that the Veteran's Addison's disease was controlled by current steroid therapy, but that disability resulting from Addison's disease significantly decreased his ability to seek and maintain gainful employment. 

An October 2003 private treatment record from Dr. Reddy, a gastroenterologist, noted the Veteran's history of Addison's disease.  Specifically, Dr. Reddy stated that the Veteran gave a history of early satiety, but denied weight loss and diarrhea.  The Veteran also reported a history of intermittent nausea and vomiting for two years.  However, there is no indication how many times per year the Veteran experienced these symptoms.  Dr. Reddy's impression, following a physical examination, was peptic ulcer disease. 

An October 2003 VA examination, noted the Veteran's report that he felt "increasingly weak."  He also complained of headaches, acid reflux, neck pain, low back, knee and elbow pain, and anorexia.  

A January 2004 private consultation report from a surgeon for advice regarding the Veteran's reflex and epigastric pain reflects the conclusion that the complaints were a potential component of gastroparesis and simply musculoskeletal.  A March 2005 private treatment record noted reduced energy, but no further comment was provided regarding relevant symptoms or the frequency with which the Veteran noted this.   

In February 2006 the Veteran testified before an RO Decision Review Officer about symptoms he experienced due to his Addison's disease.  The Veteran testified that he experienced symptoms included weakness, fatigue, nausea, vomiting, and headaches, and especially he would have no energy, be tired and irritable.  He further testified that he had such episodes of Addison's disease about half of the time each month.  

On file the Veteran submitted a copy of a calendar dated from December 2006 to September 2007, which contains notations reflecting frequent periodic symptoms of migraine headaches, that were accompanied by nausea.  (The Veteran was service connected for migraines in 2004, effective from 2003.)  

In September 2007 the Veteran testified at a Board hearing that he had episodes of Addison's disease symptoms twice a week.  

Review of VA treatment records shows that when the Veteran was seen in May 2008 to recheck his back strain and Addison's disease, the Veteran reported he had no problems with Addison's disease.  When seen in November 2008 to recheck for back strain and Addison's disease, he reported that he was generally feeling fair, and had no problems with Addison's disease.  At each visit he was to continue his medication of hydrocortisone and fludrocortisones.

The medical evidence on file relating to the period prior to January 21, 2009 does not reflect a condition of Addison's disease productive of criteria required for a disability rating in excess of 20 percent under 38 C.F.R. § 4.119, Diagnostic Code 7911.  There are no medical findings or claim by the Veteran during that period of any "crises" (defined as to include the rapid onset of peripheral vascular collapse (with acute hypotension and shock)), with findings of other symptoms as described in Note(1) to Diagnostic Code 7911.  There is also no medical finding of five or more episodes (as defined in Note (2)) during any previous year, so as to otherwise warrant an evaluation of 40 percent.  Id.   

The May 2003 VA examination revealed that the Veteran's Addison's disease was controlled by current steroid therapy.  The Veteran subsequently reported during VA and private treatment that he had no problems with his Addison's disease, and the Veteran's various private and VA treatment records fail to establish he suffered from any crises or five or more episodes during the past year, even when considering the reported incidents of "intermittent nausea" and increasing weakness in October 2003, "occasional vomiting" in January 2004, and "reduced energy" in March 2005.  

In reaching this conclusion, the Board has also considered the Veteran's testimony presented during his February 2006 DRO hearing and September 2007 Board hearing.  In this regard, the Veteran testified that he had a frequency of episodes meeting the criteria for at least a 40 percent disability rating based on the symptoms such as weakness, fatigue, nausea, vomiting, and headaches, and especially he would have no energy, be tired and irritable.  Also, he submitted several lay statements attesting to the severity and frequency of his Addison's disease symptoms.  The Veteran and his lay witnesses are certainly competent to report on factual matters of which they had firsthand knowledge, e.g., experiencing weakness, vomiting, fatigue, nausea, headaches and so on.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  

However, as indicated above, Addison's disease is a serious illness (potentially fatal).  In that context, it is reasonable to conclude that if the Veteran's complaints were considered a reflection of an Addison's episode, that would have been mentioned in the records of treatment.  As that is not the case, the Veteran's characterization of his symptoms as such, appear to be an after the fact formulation, for which there is an obvious incentive.  Accordingly, these contentions are not accorded probative weight.  Given this, the Board concludes that the criteria for a rating in excess of 20 percent prior to January 2009, are not met. 

The RO must refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extraschedular rating where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b) (1) (2013).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a Veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Id. at 116.

The Board finds that the rating criteria contemplate the Veteran's Addison's disease for the period prior to January 21, 2009.  The Veteran's disability is manifested by weakness and fatigability, contemplated in the applicable rating criteria.  The Board does not find that the Veteran has described other functional effects that are "exceptional" or not otherwise contemplated by the assigned evaluation.  Rather, his symptomatology is consistent with the degree of disability addressed by such evaluations.  Therefore, the rating criteria are adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. 

Finally, the Court has held that entitlement to total disability based on individual unemployability (TDIU) is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Board previously granted the Veteran's claim of entitlement to a TDIU in May 2012.  The RO subsequently assigned an effective date of May 23, 2005.  Accordingly, Rice considerations are inapplicable in this case.


ORDER

The claim of entitlement to a disability rating in excess of 20 percent for Addison's disease prior to January 21, 2009, is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs