Citation Nr: 18150624 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 10-17 928 DATE: November 15, 2018 ORDER Entitlement to an initial compensable disability rating for anemia is denied. Entitlement to an initial compensable disability rating for acne is denied. INTRODUCTION The Veteran served on active duty from August 1989 to August 2009. In May 2017, the Veteran attended a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was most recently before the Board in September 2017, the above-noted disabilities were remanded for additional development. The case has now been returned for further appellate review. FINDINGS OF FACT 1. Throughout the period under appeal, the Veteran’s hemoglobin has been no less than 14.2 grams per 100 milliliters, and she has not experienced manifestations such as weakness, fatigue, lightheadedness, shortness of breath, headaches, congestive heart failure, or dyspnea as a result of her anemia. 2. Throughout the period under appeal, the Veteran has not experienced deep acne to any extent. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability evaluation for anemia have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.117, Diagnostic Code 7700 (2018). 2. The criteria for an initial compensable disability evaluation for acne have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7828 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2018), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has been afforded appropriate VA examinations to address the severity of her anemia and acne in August 2009, October 2010, December 2011, and January 2018. The Veteran has not asserted, and the evidence of record does not show, that her disabilities have increased significantly in severity since her most recent examinations. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in May 2017, and a transcript of that proceeding is of record. Neither the Veteran nor her representative has identified any outstanding evidence that could be obtained to substantiate the claims; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran’s claims. Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Criteria Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2018). Factual Background and Analysis The Veteran was awarded service connection and noncompensable disability ratings for anemia and acne in the November 2009 rating decision on appeal. The Veteran has asserted a compensable disability evaluation is warranted for the above-noted disabilities. Anemia Rating Under Diagnostic Code 7700, a 0 percent rating is warranted for anemia when the hemoglobin level is 10gm/100ml or less and the condition is asymptomatic. A 10 percent rating is warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is warranted for a hemoglobin level of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. As noted above, the Veteran underwent VA examinations in August 2009, October 2010, December 2011, and January 2018 that confirmed her diagnosis of anemia. The examinations further noted the Veteran does not have any current signs or symptoms due to her anemia, or any other pertinent physical findings or complications. These examinations revealed hemoglobin levels of 14.7 grams per 100 milliliters (gm/100ml); 14.9 gm/100ml; 14.6 gm/100ml; and 14.2 gm/100ml respectively. The Veteran reported using iron supplements, but no prescribed medication is shown. A review of her outpatient treatment records from the Houston VAMC does not show any significant ongoing treatment for anemia. The probative evidence of record does not establish that the Veteran has experienced a hemoglobin level of 10 gm/100ml or less at any time during the appeal period. Accordingly, the Veteran’s service-connected anemia does not meet the criteria for an initial compensable disability evaluation. See 38 C.F.R. 4.117, Diagnostic Code 7700. As the preponderance of the evidence is against the assignment of an initial compensable disability evaluation for the Veteran’s service-connected anemia, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b). Acne Rating Diagnostic Code 7828 provides for a 0 percent rating when there is superficial acne (comedones, papules, pustules, superficial cysts) of any extent. A 10 percent rating is warranted when there is deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck. A 30 percent rating is warranted when there is deep acne (deep inflamed nodules and pus- filled cysts) affecting 40 percent or more of the face and neck. The Veteran underwent VA examinations to assess her acne in August 2009, October 2010, December 2011, and January 2018. In addition, the Board has carefully reviewed the Veteran’s outpatient treatment records from the Houston VAMC throughout the entire appeal period. In sum, the Board finds that the medical evidence of record does not support a compensable rating for acne. The above-noted VA examinations indicate the Veteran has no more than superficial acne. During her Board hearing, the Veteran testified that she uses different creams to treat her face. However, the February 2018 VA examination indicated the Veteran has not received prescription oral or topical medications to treat her acne. In addition, that examination found no evidence of scarring of the head, face, or neck as a result of her acne. Based on this evidence, the Board finds Veteran’s impairment does not more nearly approximate a 10 percent rating under Diagnostic Code 7828. (Continued on the next page)   As the preponderance of the evidence is against the assignment of an initial compensable disability evaluation for the Veteran’s service-connected acne, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel