Citation Nr: 1513077 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 10-17 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable evaluation for status-post pulmonary embolism. 2. Entitlement to an initial compensable evaluation for systemic lupus erythematosus. 3. Entitlement to an initial compensable evaluation for nephrotic syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from February 1996 to July 2008. This matter comes to the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for the disabilities on appeal assigning noncompensable (zero percent) ratings for each, effective July 28, 2008. The Veteran appealed, contending that compensable ratings were warranted. He did not disagree with the effective date assigned for the establishment of service connection. This case was previously before the Board in February 2012 and August 2014, at which time it was remanded for further development to include new VA examinations of the service-connected disabilities that are the focus of this appeal. As detailed in the August 2014 remand, examinations were scheduled but canceled because the notice was undeliverable and the Veteran could not be reached on his home phone. The Board remanded the case again in August 2014 to provide the Veteran with another opportunity to report for such examinations, and this was accomplished in October 2014. As detailed below, the Board finds that these examinations are adequate for resolution of this case. All other development directed by the Board's prior remands appears to have been substantially accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The competent medical and other evidence of record reflects the Veteran's service-connected pulmonary embolism has been asymptomatic throughout the pendency of this case. 2. The competent medical and other evidence of record reflects the Veteran's service-connected systemic lupus erythematosus has been asymptomatic throughout the pendency of this case. 3. The competent medical and other evidence of record reflects the Veteran's service-connected nephrotic syndrome has not been manifested by renal dysfunction or heart disease other than the separately evaluated hypertension throughout the pendency of this case; his hypertension is evaluated as noncompensable. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for status-post pulmonary embolism are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.97, Diagnostic Code 6817 (2014). 2. The criteria for an initial compensable evaluation for systemic lupus erythematosus are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.31, 4.88b, Diagnostic Code 6350 (2014). 3. The criteria for an initial compensable evaluation for nephrotic syndrome are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.31, 4.115b, Diagnostic Code 7507 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The appeal in this case originates from disagreement with the initial rating(s) assigned following the establishment of service connection. In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, VA's duty to notify in this case is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009). In addition, the Board finds that the duty to assist has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. For example, he has not identified outstanding evidence showing symptoms of his service-connected pulmonary embolism, lupus, and/or nephrotic syndrome that is not reflected by the evidence already of record. He has indicated that no hearing is desired in conjunction with this case. The Board further notes that the Veteran was accorded VA medical examinations in January 2009 and October 2014 which evaluated these service-connected disabilities. VA examiners are presumed qualified to provide competent medical evidence. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). No inaccuracies or prejudice is demonstrated with respect to these examinations, nor has the Veteran reported any of the service-connected disabilities have increased in severity since the most recent examination thereof. The Board acknowledges that, in a March 2015 statement, the Veteran's accredited representative criticized the adequacy of the October 2014 VA examination regarding the pulmonary embolism as it was noted the Veteran was to be rescheduled for a pulmonary function test (PFT), but no such test is of record. However, as detailed below, the rating criteria used for evaluation of this disability does not include the results of PFTs. The representative also criticized the October 2014 examination for the nephrotic syndrome as no laboratory tests were performed to show his BUN and creatinine; or urinalysis for presence of proteinuria or hematuria. Nevertheless, the VA examiner explicitly found that there was no evidence of renal dysfunction. As such, no such testing would appear warranted as they are designed to determine the level of such dysfunction. Consequently, the Board finds that the Veteran is not prejudiced by the lack of such testing. Accordingly, the Board finds that these examinations are adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal 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). General Legal Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Pulmonary Embolism The Veteran's service-connected pulmonary embolism is evaluated pursuant to the criteria found at Diagnostic Code 6817 for pulmonary vascular disease. Under this Code, a noncompensable rating is assigned when it is asymptomatic following resolution of a pulmonary thromboembolism, and 30 percent if symptomatic. Where there is chronic pulmonary thromboembolism requiring anticoagulant therapy, or following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction, a 60 percent rating is assigned. Pulmonary vascular disease resulting in primary pulmonary hypertension, or chronic pulmonary thromboembolism with evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale; or pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy, warrants a 100 percent rating. 38 C.F.R. § 4.97. In this case, the Board finds that the competent medical and other evidence of record reflects the Veteran's service-connected pulmonary embolism has been asymptomatic throughout the pendency of this case. For example, the service treatment and other records reflect the condition responded well to in-service and post-service medical treatment. The January 2009 VA examination noted that it was diagnosed in 2007, and associated with shortness of breath, but the condition was now stable. No impairment was demonstrated on physical examination; with pulmonary and chest evaluations normal. The more recent October 2014 VA examination noted the Veteran had no recurrence of his pulmonary embolism since 2007, and that it was currently asymptomatic. None of the other evidence of record reflects this condition has been symptomatic during the pendency of this case. In view of the foregoing, the Board finds the Veteran does not meet or nearly approximate the criteria for a compensable rating under Diagnostic Code 6817. Lupus The Veteran's systemic lupus erythematosus is evaluated pursuant to Diagnostic Code 6350. Under this Code, a 10 percent rating is warranted when there are exacerbations of it once or twice a year or it was symptomatic during the past two years. A 60 percent rating is warranted when there are exacerbations lasting a week or more, two or three times per year. A 100 percent evaluation is warranted for acute system lupus erythematosus, with frequent exacerbations, producing severe impairment of health. Diagnostic Code 6350 also instructs the rater to alternatively evaluate the condition either by combining the evaluations of residuals under the appropriate system (whichever method results in a higher rating). 38 C.F.R. § 4.88b. The competent medical and other evidence of record reflects the Veteran's service-connected systemic lupus erythematosus has been asymptomatic throughout the pendency of this case. As with the pulmonary embolism, the service treatment and other records reflect the condition responded well to in-service and post-service medical treatment. The January 2009 VA examination noted that the condition was diagnosed in 2006 and was associated with the nephrotic syndrome, and that it had improved with medical treatment. It was also noted he was found to be anemic in 2007, likely due to the lupus, but this was now resolved. No impairment was noted on the physical examination itself. The more recent October 2014 VA examination noted that the Veteran's lupus had been in remission for at least a year, and he was not currently receiving any treatment for this service-connected disability. Additionally, it was explicitly stated he did not have any exacerbations; cutaneous manifestations; or other findings, signs or symptoms of an autoimmune disease, including his service-connected lupus. None of the other evidence of record reflects the Veteran's lupus was symptomatic, or that he had exacerbation(s) thereof, during the pendency of this case. In view of the foregoing, the Board finds the Veteran does not meet or nearly approximate the criteria for a compensable rating under Diagnostic Code 6350. Nephrotic Syndrome This disability has been evaluated under the provisions of Diagnostic Code 7507, which instructs it is to be rated according to the predominant symptoms as renal dysfunction, hypertension, or heart disease. 38 C.F.R. § 4.115b. For renal dysfunction, a noncompensable rating is assigned where there is albumin and casts with history of acute nephritis; or, hypertension due to renal dysfunction that is noncompensable under Diagnostic Code 7101. A 30 percent rating is assigned when there is constant or recurring albumin with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. A 60 percent rating is warranted when there is constant albuminuria with some edema; or definite decrease in kidney function; or hypertension at least 40 percent disabling under Diagnostic Code 7101. An 80 percent rating requires persistent edema and albuminuria with BUN 40 to 80 mg %; or creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. A 100 percent rating requires regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or BUN more than 80 mg%; or creatinine more than 8mg%; or markedly decreased function of kidney or other organ systems, especially cardiovascular. Under Diagnostic Code 7101, a rating of 10 percent is warranted for hypertensive vascular disease where the diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. A 20 percent evaluation requires diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. A 60 percent evaluation requires diastolic pressure of predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken 2 or more times on at least 3 different days. The term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104 . Initially, the Board notes that service connection has been established for hypertension as a separate and distinct disability, and has been rated accordingly. Therefore, his nephrotic syndrome cannot be evaluated on the basis of hypertension being the predominant disability as this would be in violation of the prohibition against pyramiding. Moreover, the Veteran's service-connected hypertension is evaluated as noncompensable under Diagnostic Code 7101, which also warrants a noncompensable rating on the basis of renal dysfunction. Additionally, the Board observes this noncompensable rating is consistent with the evidence of record, as he had blood pressure readings of 115/76 (systolic/diastolic), 117/71, and 110/68 on the January 2009 VA examination; and 136/84 on the October 2014 VA examination. The Board further notes the competent medical and other evidence of record does not reflect the Veteran has heart disease other than the separately evaluated hypertension. No diagnosis of such is demonstrated in the competent medical evidence of record, to include service treatment records and the VA examinations conducted in January 2009 and October 2014. Rather, both VA examinations included explicit findings that he did not have a heart disorder. The Board also finds that the competent medical and other evidence of record does not reflect evidence of renal dysfunction throughout the pendency of this case. As with the other service-connected disabilities that are the focus of this appeal, the service treatment and other records reflect the condition responded well to in-service and post-service medical treatment. There was no evidence of constant or recurring albumin, or decrease in kidney function, in the post-service records, to include the January 2009 and October 2014 VA examinations. The January 2009 VA examination noted the condition had improved since onset in 2006. At the October 2014 VA examination the Veteran reported that he was recently discharged from Nephrology clinic as his condition is felt to be in remission. The examination further found that he had no evidence of renal dysfunction; with the report noting that evidence of renal dysfunction includes either persistent proteinuria, hematuria, or GFR <60 cc/min/1.73m2. In view of the foregoing, the Board finds the Veteran does not meet or nearly approximate the criteria for a compensable rating under Diagnostic Code 7507. Other Considerations The Board notes that in evaluating the Veteran's service-connected pulmonary embolism, lupus, and nephrotic syndrome it took into consideration whether "staged" rating(s) may be assigned. However, a thorough review of the evidence of record does not demonstrate any distinctive period(s) where any of these disabilities met or nearly approximated the applicable schedular criteria for a compensable evaluation(s). Therefore, no "staged" rating(s) are warranted in this case. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The 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 extraschedular 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 extraschedular 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. In this case, the Board finds that consideration of extraschedular rating(s) is not warranted in this case. As detailed above, the schedular criteria for both the pulmonary embolism and lupus warrant a compensable rating when either condition is symptomatic regardless of specific symptomatology. The criteria for the nephrotic syndrome required the Board to consider, in part, any type of symptoms that resulted in decrease of kidney function. As such, the applicable schedular criteria for all of these disabilities is sufficient to cover any type of symptomatology that might be present. Further, there does not appear to be other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. In fact, the evidence indicates these conditions have been asymptomatic throughout the pendency of this case. Consequently, the Board concludes the rating criteria are therefore adequate to evaluate the Veteran's service-connected disabilities and referral for consideration of extraschedular rating is not warranted. Lastly, the Board notes that notes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the record does not demonstrate, nor does the Veteran contend, he is unemployable due solely to his service-connected disabilities. Therefore, no further discussion of entitlement to a TDIU is warranted in this case. ORDER An initial compensable evaluation for status-post pulmonary embolism is denied. An initial compensable evaluation for systemic lupus erythematosus is denied. An initial compensable evaluation for nephrotic syndrome is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs