Citation Nr: 1814728	
Decision Date: 03/09/18    Archive Date: 03/19/18

DOCKET NO.  17-39 981	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for residuals of myelodysplastic syndrome (MDS) /iron deficiency anemia.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Ben Winburn, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1956 to June 1960.  
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In a February 2018 letter, the Veteran's representative submitted the Veteran's request to cancel his scheduled hearing.  As such, the Veteran's hearing request is deemed to have been withdrawn.

The Board recognizes that the Veteran's attempt to raise the issue of entitlement to service connection for residuals of MDS to include sleep disorder, fatigue, weight loss and psychological stress in a statement dated in July 2017.  The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary.  38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2017).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Throughout the pendency of this appeal, the Veteran's residuals of MDS/ iron deficiency anemia has been manifested by hemoglobin more than 10gm/100ml and dyspnea on mild exertion, easy fatigability, and shortness of breath without hemoglobin 8 gm/100 ml (i.e., 8 gm/1 dL) or less, headaches, lightheadedness,  dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months), high output congestive heart failure or dyspnea at rest.






CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for residuals of MDS iron deficiency anemia have not been met.  38 U.S.C. §§  1155, 5107(b) (2012); 38 C.F.R. §§  3.102, 4.1-4.14,  4.117, Diagnostic Code 7700 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

With respect to the propriety of the assigned rating for the service-connected MDS/iron deficiency anemia, the Veteran has appealed from the original grant of benefits. VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess/Hartman, supra.  In this case, service connection was granted and an initial rating was assigned in the June 2014 rating decision on appeal.  Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.            § 5103(a) notice is required as the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).   

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C. § 5103A; 38 C.F.R.            § 3.159.  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In the present case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for the equitable resolution of the issue decided herein has been obtained.  Specifically, the Veteran's service treatment records, as well as VA treatment records, have been obtained and considered.  

The Veteran has been afforded a VA examination in conjunction with the claim for a higher rating decided herein, provided to determine the severity of his MDS/iron deficiency anemia.  Neither the Veteran nor his representative has alleged that this VA examinations are inadequate for rating purposes.  Moreover, the Board finds that the examination is adequate in order to evaluate the Veteran's service-connected MDS/iron deficiency anemia as they include interviews with the Veteran, a review of the record, and full examinations, addressing the relevant rating criteria.  Moreover, neither the Veteran nor his representative has alleged that his MDS/iron deficiency anemia has worsened in severity since the last VA examination.  Rather, with respect to such claim, they argue that the evidence reveals that this disability has been more severe than the currently assigned rating for the duration of the appeal period.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination).  Therefore, the Board finds that the examination of record is adequate to adjudicate the Veteran's claim for a higher rating and no further examination is necessary.

In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied.  Thus, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 




Initial Rating

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  

Where the appeal arises from the original assignment of a disability rating following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.  Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

The Veteran's MDS/iron deficiency anemia is rated under the diagnostic code for hypochromic-microcytic and megaloblastic anemia, such as iron deficiency and pernicious anemia.  Anemia with hemoglobin 10 gm/100 ml or less, asymptomatic, is rated as noncompensable.  Anemia with hemoglobin 10 gm/100 ml (i.e., 10 gm/1 dL) or less with findings such as weakness, easy fatigability or headaches, is rated 10 percent disabling.  Anemia with hemoglobin 8 gm/100 ml (i.e., 8 gm/1 dL) or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath, is rated 30 percent disabling.  Anemia with hemoglobin 7 gm/100 ml (i.e., 7 gm/1 dL) 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), is rated 70 percent disabling . Anemia with hemoglobin 5 gm/100 ml (i.e., 5 gm/1 dL) or less, with findings such as high output congestive heart failure or dyspnea at rest, is rated 100 percent disabling.  38 C.F.R. § 4.117, Diagnostic Code 7700.

The Veteran generally alleges that a higher rating is warranted for his MDS/iron deficiency anemia.  In a July 2014 notice of disagreement, the Veteran wrote that his MDS is a life-altering condition and that the severity of his condition warrants a higher rating.

The Board finds that a rating in excess of 10 percent for MDS/iron deficiency anemia is not warranted.  A rating in excess of 10 percent requires anemia with hemoglobin 8 gm/100 ml (i.e., 8 gm/1 dL) or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath.

During his April 2014 VA examination, the Veteran reported he had previously undergone 6 weeks of iron infusion therapy in 2013 which resulted in an improvement in his symptoms.  Nevertheless, the Veteran reported his hands still felt cold all the time and that he continued to experience easy fatigability, and with exertional activities, fatigability and shortness of breath.  Diagnostic laboratory testing conducted one month prior showed the Veteran's hemoglobin was measured at 11.4 gm/100ml.  

The clinical records were also reviewed.  The hemoglobin readings fail to show the Veteran has had hemoglobin counts 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath, at any time during the pendency of the appeal that would warrant a higher 30 percent rating.

The Board has considered whether further staged rating sunder Fenderson and Hart, supra, are appropriate for the Veteran's service-connected residuals of MDS/iron deficiency anemia; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning a staged rating for such a disability is not warranted. 

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

 The Board has also considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against a higher rating.  38 U.S.C.   § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, supra.   


ORDER

An initial rating in excess of 10 percent for residuals of MDS/iron deficiency anemia is denied.


____________________________________________
KRISTY L. ZADORA
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs