Citation Nr: 1611942 Decision Date: 03/24/16 Archive Date: 03/29/16 DOCKET NO. 09-22 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent prior to June 4, 2009 and in excess of 40 percent thereafter for Raynaud's syndrome. 2. Entitlement to an initial disability rating in excess of 10 percent for systemic lupus and rheumatoid arthritis. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Veresink, Counsel INTRODUCTION The Veteran had active service from November 1986 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2013, the Board remanded this issue for further evidentiary development. The requested development was completed, and the case has now been returned to the Board for further appellate action. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits but is instead part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran previously claimed that she was unemployable as a result of all of her service-connected disabilities. See VA Form 21-8940 received in March 2009. The RO denied a TDIU in May 2009 noting that the issue was moot as the Veteran was receiving a 100 percent disability rating for breast cancer. However, in July 2014 the RO reduced the rating for breast cancer from 100 percent to 0 percent. As such, the Board finds that the claim for a TDIU is within its jurisdiction and it has been added to the title page. The issues of entitlement to an initial disability rating in excess of 10 percent for systemic lupus and rheumatoid arthritis and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to June 4, 2009, the Veteran's Raynaud's syndrome manifested with intermittent characteristic attacks occurring less than four times per week. 2. From June 4, 2009, the Veteran's Raynaud's syndrome manifested with daily characteristic attacks, but without digital ulcers. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent prior to June 4, 2009 and in excess of 40 percent thereafter for Raynaud's syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.7, 4.104, Diagnostic Code 7117 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2015). The VCAA applies to the instant claim. The appeal for higher initial ratings arises from a disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and 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 regarding that issue. The Board also finds that there has been compliance with VA's duty to assist. The record in this case includes service treatment records, private treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Board remanded this issue in September 2013 to obtain any outstanding treatment records and to afford the Veteran with a VA examination that addressed the severity of her Raynaud's syndrome. No additional treatment records related to Raynaud's syndrome were identified by the Veteran. The Veteran was afforded a VA examination in October 2013. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded VA examinations in April 2007 and October 2013. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. Therefore, the Board finds the examinations to be sufficient and adequate for rating purposes. Higher Initial Rating - Raynaud's Syndrome Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall 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 any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's Raynaud's syndrome is rated under Diagnostic Code 7117 for Raynaud's syndrome. Under that regulation, Raynaud's syndrome with two or more digital ulcers plus autoamputation of one or more digits and history of characteristic attacks warrants a 100 percent rating. Raynaud's with two or more digital ulcers and history of characteristic attacks warrants a 60 percent rating. Raynaud's with characteristic attacks occurring at least daily warrants a 40 percent rating. Raynaud's with characteristic attacks occurring four to six times a week warrants a 20 percent rating. Raynaud's with characteristic attacks occurring one to three times a week warrants a 10 percent disability rating. 38 C.F.R. § 4.104. The regulation includes a note stating that, for purposes of this section, characteristic attacks consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesias and precipitated by exposure to cold or by emotional upsets. These evaluations are for the disease as a whole, regardless of the number of extremities involved or whether the nose and ears are involved. 38 C.F.R. § 4.104. Prior to June 4, 2009, the Veteran's Raynaud's syndrome is rated at 10 percent under Diagnostic Code 7117. To receive a higher disability rating the evidence must show characteristic attacks occurring four to six times a week. The Veteran's treatment records do not show more than sporadic symptoms of Raynaud's during this period. An October 2006 treatment record specifically noted some complaints of pain in the right thumb with some swelling, but found no other symptoms of the hands or feet related to Raynaud's. During the April 2007 VA examination, the Veteran reported Raynaud's phenomenon only intermittently. The examiner did not note characteristic attacks occurring four to six times per week. Based on the evidence of record, the Board finds that the manifestations of the Veteran's Raynaud's syndrome do not more nearly approximate the criteria for a disability rating in excess of 10 percent prior to June 4, 2009 and do not manifest with characteristic attacks occurring four to six times per week. From June 4, 2009 forward, the Veteran's Raynaud's syndrome is rated at 40 percent under Diagnostic Code 7117. To receive a higher rating, the evidence must show two or more digital ulcers and a history of characteristic attacks. The Veteran's treatment records do not indicate any digital ulcers. A June 2009 private treatment record showed that the Veteran had significant pain on a daily basis with frequent vasospasms. Her fingers were cold and dusky and she was on the appropriate medication. The Raynaud's syndrome affects her activities of daily living. The examiner did not note any digital ulcers. The Veteran was afforded a VA examination in October 2013. The examiner noted that her hands and feet are cold. The Veteran had characteristic attacks at least daily, but she did not have two or more digital ulcers and did not have autoamputation of one or more digits. The examiner found that it did not impact her ability to work. As the record contains no evidence of digital ulcers or autoamputation, the Board finds that the manifestations of the Veteran's Raynaud's syndrome do not more nearly approximate the criteria for a disability rating in excess of 40 percent from June 4, 2009. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted. Extraschedular consideration requires a three-step inquiry. See 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the claimant's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the claimant's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation to determine whether an extraschedular rating is warranted. The Board finds that the rating criteria contemplate the Veteran's disability. The Veteran's Raynaud's is manifested by intermittent characteristic attacks prior to June 4, 2009 and with daily characteristic attacks thereafter. These manifestations are contemplated in the applicable rating criteria. See 38 C.F.R. § 4.104, Diagnostic Code 7117. 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, her description of Raynaud's 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 Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Service connection is currently in effect for total abdominal hysterectomy, Raynaud's syndrome, systemic lupus and rheumatoid arthritis, gastroesophageal reflux disease, scar associated with left partial mastectomy, and residuals of left breast cancer. The evidence does not suggest that there are any effects of the combination of these disabilities that are not already accounted for in the individually assigned ratings. Therefore, further discussion in this regard is not warranted. ORDER Entitlement to an initial disability rating in excess of 10 percent prior to June 4, 2009 and in excess of 40 percent thereafter for Raynaud's syndrome is denied. REMAND The Veteran is service connected for systemic lupus and rheumatoid arthritis, which are rated together due to overlapping symptoms under Diagnostic Code 6350. Under that regulation, the rater is directed to evaluate the condition either by combining the evaluations for residuals under the appropriate system or by evaluating under the lupus diagnostic code, whichever is higher. 38 C.F.R. § 4.88b (2015). During the October 2013 examination, the examiner noted that the Veteran has joint involvement, that her hands and knees appear worse, and that the Veteran has arthritis attributable to her lupus affecting the knees and hands. The examiner did not perform an orthopedic examination of the joints and did not provide any range of motion findings. As the Veteran is currently only entitled to a 10 percent disability rating under the applicable Diagnostic Code, but would possibly be entitled to a higher percentage if the joints were rated individually, the Board finds that a new VA examination is required to address any orthopedic findings related to the joints affected by systemic lupus and rheumatoid arthritis. In addition, in October 2013 the Veteran authorized VA to obtain records from two private facilities for treatment related to systemic lupus and rheumatoid arthritis from May 2007 to present. The file does not reflect that any efforts were made to obtain updated records from these facilities. This should be remedied on remand. The TDIU claim is intertwined with the outcome of the claim for a higher rating and as a result is also remanded. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding treatment records from Physician Surgical Network and Kissimmee Medical Center (see VA Forms 21-4142 submitted in 2013) related to the Veteran's systemic lupus and rheumatoid arthritis. If updated authorization is needed to obtain these records, authorization should be requested from the Veteran. 2. Schedule the Veteran for a VA examination to ascertain and evaluate the current level of severity of the Veteran's systemic lupus and rheumatoid arthritis, to include any orthopedic findings related to the affected joints. The examiner should review the claims file in conjunction with the examination. Any medically indicated special tests should be accomplished. The examiner should clearly report the extent of the Veteran's disability in accordance with VA rating criteria, and offer an opinion as to the level of occupational impairment caused by her service-connected systemic lupus and rheumatoid arthritis. The examiner should specifically list each joint affected by the Veteran's systemic lupus and rheumatoid arthritis. The examiner should then: a.) Indicate whether the rheumatoid arthritis has been active, either on this exam or whether records reveal episodes of past activity. If not active, please describe any chronic residuals. b.) Describe the range of motion of any affected joints in degrees as well as any additional functional loss due to pain, including during flare-ups or after repetitive use, or as a result of weakness, atrophy, or excess fatigability. The examiner should then indicate the level of impairment for each affected joint. If the Veteran has arthritis and painful motion of any joint related to the Veteran's systemic lupus and rheumatoid arthritis, the examiner should so note. c.) Determine whether the Veteran's systemic lupus and rheumatoid arthritis present with symptoms distinct from each other, or if they present with additional symptoms beyond the orthopedic findings noted above. d.) Discuss the functional limitations on employment caused by the Veteran's service-connected disabilities, specifically total abdominal hysterectomy, Raynaud's syndrome, systemic lupus and rheumatoid arthritis, gastroesophageal reflux disease, scar associated with left partial mastectomy, and residuals of left breast cancer. A complete rationale must be provided for any opinion offered. 3. Then, the record should again be reviewed, to include the claim for a TDIU. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2014). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs