Citation Nr: 1400266 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 07-23 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for residuals, including left knee pain, peroneal neuropathy, fracture and scarring, of a gunshot wound to the left tibia. 2. Entitlement to an initial evaluation in excess of 10 percent for human immunodeficiency virus (HIV). REPRESENTATION Appellant represented by: John R. Worman, Attorney at Law ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from December 1995 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that, in pertinent part, granted service connection and a 20 percent initial rating for residuals of a gunshot wound of the left tibia and service connection and a noncompensable rating for residuals of HIV infection. These decisions were made effective March 6, 2006. The Veteran submitted a notice of disagreement with the initial ratings and a statement of the case was issued in June 2007. The Veteran submitted his substantive appeal in July 2007. In March 2011, the Board denied service connection for sinusitis and remanded the increased rating claims for further development. In the decision, the Board also referred the issue of entitlement to service connection for allergic rhinitis, headaches and upper respiratory infections to the agency of original jurisdiction (AOJ) for initial adjudication). As action on this issue has not yet been taken, it is again referred back. In August 2012, the RO granted separate 10 percent evaluations for left knee limitation of flexion, right knee limitation of flexion and degenerative joint disease, and right knee instability, each effective March 6, 2006. In August 2006, the RO also increased the evaluation of the Veteran's HIV disability to 10 percent disabling effective March 6, 2006. The Board notes that, in addition to the physical claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. The issue of entitlement to an initial evaluation in excess of 20 percent for the Veteran's gunshot wound of the left tibia 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. FINDING OF FACT The Veteran's HIV has not been productive of recurrent constitutional symptoms, intermittent diarrhea, and required approved medication(s), or of a T4 cell count less than 200, hairy cell leukoplakia, or oral candidiasis. CONCLUSION OF LAW Entitlement to a rating in excess of 10 percent for disability of HIV is denied. 38 U.S.C.A. § 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.321, 4.1-4.7, 4.88b, Diagnostic Code 6351 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA. In letters dated in March 2006, July 2006, and May 2008, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the Board notes that the Veteran claims arise from an appeal of the initial evaluation following the grant of service connection. In such cases, Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. In addition, the Veteran was afforded VA examinations dated in September 2006 and July 2011 which, taken together, are fully adequate to rate the claim adjudicate herein. The Board finds that the examination reports fully addressed rating criteria and the evidence at issue in this case. The Board also notes that this matter was remanded in March 2011 in order to afford an updated VA examination in connection with the Veteran's claims. This examination took place in July 2011 and adequately addressed the directives set out in the remand request with respect to the Veteran HIV claim. As such, the Board finds that there has been substantial compliance with the terms of the March 2011 remand in connection with the issue of a higher rating for HIV. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) II. Increased Rating Claims. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) codified in 38 C.F.R. Part 4, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2011). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with the impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Regulations require that where there is a question as to which of two evaluations is to 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. In addition, the Court has recognized that "staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service- connected disability exhibits symptoms what would warrant different ratings." Hart v. Mayfield, 21 Vet. App. 505, 509-10 (2007). HIV-related illnesses are evaluated under Diagnostic Code 6351, which provides a 10 percent rating is warranted following development of definite medical symptoms, T4 cell count of 200 or more and less than 500, and on approved medication(s); or with evidence of depression or memory loss with employment limitations. A 30 percent rating is appropriate where there are recurrent constitutional symptoms, intermittent diarrhea, and requires approved medication(s); or minimum rating with T4 cell count less than 200, or hairy cell leukoplakia, or oral candidiasis. A 60 percent rating is warranted when there are refractory constitutional symptoms, diarrhea, and pathological weight loss; or the minimum rating following development of AIDS-related opportunistic infection or neoplasm. 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 (2) states 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 combinations with percentages otherwise assignable above. 38 C.F.R. § 38 C.F.R. § 4.88b. In this case, the preponderance of the evidence against the Veteran's claim for a rating in excess of 10 percent for disability of HIV. In this regard, the Board notes that in order to meet the criteria for the next higher rating of 30 percent for HIV, the evidence must show recurrent constitutional symptoms, intermittent diarrhea, and requires approved medication(s); or T4 cell count less than 200, or hairy cell leukoplakia, or oral candidiasis. See 38 C.F.R. § 4.88b, Diagnostic Code 6351. The medical evidence in this case consists of VA examinations dated in September 2006 and July 2011, as well as outpatient treatment records. The Veteran was first examined by VA in September 2006. He tested positive for HIV in December 2003. The examiner reported that the Veteran had no recurrent opportunistic infections, or recurrent constitutional symptoms. There was no diarrhea, weakness, debility condition, and no progressive weight loss. In fact, the examiner stated that the Veteran had gained 20 pounds since 2005. The examiner found that the Veteran had no symptoms of HIV condition, including no depression and no memory loss. There was also no current effect on his daily activities. On examination, there were no palpable lymph nodes, no lymphadenopathy, no leukoplakia, and no oral candidiasis. There was no wheezing or rales of the lung and no evidence of pneumonia. The Veteran showed no evidence of neoplasm related to HIV and no indicator of acquired immunodeficiency syndrome. The examiner indicated that the Veteran appeared to be asymptomatic. The Veteran was diagnosed as status post HIV infection, asymptomatic. Absolute CD4 count was 634, above 500 cells per cubic mm. The Veteran was also evaluated for his HIV dated in July 2011. The examiner found that the condition effected general body health by causing depression, adding to PTSD symptoms, diminishing sex drive, and causing lack of interaction with others. Secondary to HIV, the Veteran described diarrhea (1 to 3 times monthly), depression (daily), memory loss (constant), fever, cough, swollen lymph nodes, shortness of breath, vision loss, and difficult/painful swallowing. The examiner stated that the Veteran's condition was active and the subjective factors were depression and diarrhea. According to the CDC guidelines the Veteran met the definition of AIDS secondary to HIV infection. The Veteran was noted to have a CD4 count of 676. There was no opportunistic infection or neoplasm. Outpatient treatment records were also reviewed and treatment for HIV was noted. The treatment notes did not indicate symptoms worse than reported in the VA examination reports. Based on the foregoing, an evaluation in excess of 10 percent is not warranted by the evidence. A higher evaluation requires evidence of recurrent constitutional symptoms, intermittent diarrhea, and requires approved medication(s); or T4 cell count less than 200, or hairy cell leukoplakia, or oral candidiasis. These symptoms have not been shown in this case over any portion of the rating period on appeal. In this case, the Board notes that the VA examinations of the Veteran were not conducted with the benefit of reviewing of the claims file. However, even if the claims file had not been available, the Board notes that the Court in Mariano v. Principi, 17 Vet. App. 305, 311-12 (2003), held that scientific tests (range of motion measurements in that case) are not conclusions drawn by a VA examiner that would be affected by review of the claims file. As a result, the Court concluded that the failure to review the Veteran's claims file did not undermine the objective (range of motion) findings recorded by the VA examiner; these findings were considered valid despite flaws in the record. Id. A review of the Veteran's claims file, while desirable, was not necessary to the successful evaluation of the Veteran's claim. In addition, with respect to the Veteran's claim, the Board has also considered the statements that his disability is worse than evaluated. 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). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. Finally, the Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran'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." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The manifestations of the Veteran's disability causes impairment that is contemplated by the rating criteria. Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology and provide for higher ratings for additional or more severe symptoms than currently shown by the evidence. The Board finds that the rating criteria adequately account for the symptomatology associated with the Veteran's disability for the entire period of time during the pendency of this appeal and that the symptomatology and level of social and industrial impairment associated therewith are contemplated in the pertinent rating criteria. Thus, the disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Referral for consideration of an extraschedular rating is, therefore, not warranted. ORDER An initial evaluation in excess of 10 percent for disability of HIV is denied. REMAND Regarding the claim involving the gunshot wound of the left tibia, additional development is required. VA has a duty to make reasonable efforts to assist the 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(a); 38 C.F.R. § 3.159(c), (d). In March 2011, the Veteran's left tibia claim was remanded for an updated VA examination. In that decision, the Board requested that the Veteran be scheduled for a VA examination to evaluate the residuals of the gunshot wound of the left tibia to include an evaluation of limitation of motion, the size and associated symptoms of any scarring, neurologic impairment, and any instability or subluxation of the knee. The Veteran was afforded a VA examination in July 2011 that evaluated for his right knee, HIV, and asthma claims. However, the examination did not address the service-connected gunshot wound of the left tibia. Indeed, while range of motion testing was accomplished for both knees, there was no reference to findings specific to muscle injuries. A review of the Veteran's paper and virtual files does not indicate that this examination has been accomplished. As such this matter is remanded for compliance with the March 2011 remand request. In this regard, the Board notes that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Upon remand, updated VA treatment records should be obtained. In addition, the Veteran should be afforded an opportunity to submit additional medical evidence relevant to his claim that may not be associated with the claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Associate updated VA treatment records with the claims file and take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the Veteran's claims file, that have treated him since service for his claimed disability. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. Schedule the Veteran for a VA examination to evaluate the residuals of the gunshot wound of the left tibia. The examiner should review the claims folder and note such review in the examination report or addendum. The examiner should note all manifestations of the disability, including limitation of motion, the size and associated symptoms of any scarring, neurologic impairment, muscle injury such as loss of tone or atrophy, and any instability or subluxation of the knee. The examiner should report the range of motion of any joint affected by the tibia injury in degrees and determine whether the disability is manifested by weakened movement, excess fatigability, or incoordination. Such inquiry should not be limited to muscles or nerves. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain, or flare-ups. 3. Review the record to ensure the examination reports comply with the remand instructions. 4. If any benefit on appeal remains denied, issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2013). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs