Citation Nr: 1804930 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-07 174A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial compensable disability evaluation for service-connected pernicious anemia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Churchwell, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1967 to December 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from the July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which in pertinent part, granted service connection for pernicious anemia and assigned a noncompensable rating effective November 16, 2010 (date of claim). The Veteran disagreed with the rating assigned for that disability. See August 2012 notice of disagreement. FINDING OF FACT Throughout the period of the claim, the Veteran's anemia has been manifested by hemoglobin greater than 10gm/100ml. CONCLUSION OF LAW The criteria for an initial compensable evaluation for anemia have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.117, Diagnostic Code 7700 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The duty to notify has been met. See April 2011 VCAA correspondence. In light of the foregoing, nothing more is required. VA also has a duty to assist a claimant in the development of a claim. That duty includes assisting the claimant in the procurement of service and other relevant records and providing an examination when necessary. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has associated the Veteran's service treatment records and VA treatment records with the claims file. The Veteran was also afforded adequate examinations in April 2011 and August 2014. The examiners considered the relevant history, provided a detailed description of the condition, and provided an extensive analysis to support the conclusions reached. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). As there is no indication or allegation that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria, Facts and Analysis As noted in the Introduction, the Veteran's service-connected pernicious anemia is currently assigned a noncompensable rating effective November 16, 2010. It is the Veteran's contention that he warrants a compensable rating. In particular, in his March 2014 VA Form 9, substantive appeal, the Veteran indicated that his anemia manifested with symptoms including fatigue, light headedness, shortness of breath, and dyspnea. Additionally, also in March 2014, the Veteran submitted a letter which discussed his disagreement with the noncompensable rating for his anemia. He indicated that he suffered from severe muscle weakness and severe migraine headaches for which he was taking prescribed medication. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2017). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2017). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. At 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). The Veteran's pernicious anemia is rated under 38 C.F.R. § 4.117, Diagnostic Code 7700. Under Diagnostic Code 7700, a noncompensable rating is warranted for hemoglobin 10gm/100ml or less, asymptomatic. A 10 percent rating is warranted for hemoglobin 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent evaluation is warranted for hemoglobin 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent evaluation is warranted for hemoglobin 7gm/100 ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). A 100 percent rating is warranted for hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. After reviewing the pertinent evidence of record, the Board finds that the symptoms related to the Veteran's service-connected pernicious anemia more closely approximate the noncompensable disability criteria under 38 C.F.R. § 4.117, Diagnostic Code 7700. Specifically, VA medical treatment records show that a CBC profile was performed on the Veteran. Hemoglobin results from March 2011 showed 13.2gm/100ml; in May 2011, his hemoglobin results were 12.9gm/100ml; and in May 2012, they were 13.4gm/100ml. Additionally, VA treatment notations from the Jesse Brown VA Medical Center dated August 2010 to July 2011 show the Veteran was noted to have a vitamin B-12 deficiency with complaints of fatigue. He was diagnosed with vitamin B-12 deficiency. On April 2011 VA examination, pernicious anemia was diagnosed. The VA examiner noted that the condition was active and treated with cyanocobalamin injections along with hypothyroidism. The Veteran's symptoms included constipation, fatigue and weakness. On August 2014 VA examination, anemia was diagnosed. The VA examiner noted that the condition was treated monthly with vitamin B-12 injections. Laboratory testing performed in conjunction with that examination showed hemoglobin results of 13.9gm/100ml. Also of record are the Veteran's submissions of medical literature pertaining to pernicious anemia. In the submission of the medical articles, the Veteran highlighted symptoms that he also claimed to have. Such symptoms included diarrhea or constipation; problems with concentration; shortness of breath, mostly during exercise; depression; loss of balance; and numbness and tingling of hands and feet. The aforementioned medical and lay evidence of record supports the finding that the criteria for an evaluation in excess of 0 percent for anemia are not met. In this regard, the Board notes that at no point during the appeal period does the competent (medical) evidence show that the Veteran has had hemoglobin readings of 10gm/100ml or less. Although the next higher, 10 percent rating, contemplates such symptoms as weakness, easy fatigability, or headaches, it also requires hemoglobin results of 10gm/100ml or less. At all times during the appeal period, the Veteran's hemoglobin results have been greater than 10gm/100ml. Likewise, the Board acknowledges the Veteran's argument that his pernicious anemia warrants a 30 percent rating because his disability is manifested by symptoms similar to those that are contemplated by that schedular rating. Significantly, the record reflects the Veteran's complaints of fatigue, light headedness, shortness of breath, and dyspnea. Although the Board does not doubt the existence of such symptoms, a 30 percent rating also requires hemoglobin results of 8gm/100ml or less. As explained directly above, this has not been shown by the record. Thus, the Veteran has not met the criteria for a higher rating at any time during the period of the claim. The Board has also considered whether there is any other scheduler basis for granting a separate compensable rating for conditions such as dementia or peripheral neuropathy but has found no evidence to support such a finding. Notably, the Veteran is already service-connected for radiculopathy of the right and left lower extremity associated with lumbosacral strain and degenerative disc disease. As such, the Board finds the Veteran is not entitled to an initial compensable disability evaluation for service-connected pernicious anemia, and the appeal as to this issue is denied. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). ORDER An initial compensable disability evaluation for service-connected pernicious anemia is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs