Citation Nr: 1828993 Decision Date: 05/22/18 Archive Date: 06/05/18 DOCKET NO. 14-41 488A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected rheumatoid arthritis. 2. Entitlement to a compensable initial disability rating for service-connected osteopenia. 3. Entitlement to an initial disability rating in excess of 30 percent for service-connected thrombocytopenia. 4. Entitlement to an effective date prior to June 13, 2011, for the grant of entitlement to service connection for thrombocytopenia. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Army from February 2000 to January 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office. In July 2017 the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing was prepared and added to the record. The issues of entitlement to increased ratings for service-connected thrombocytopenia and osteopenia are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the claims period, the Veteran's rheumatoid arthritis manifested as an active process and most nearly approximated symptom combinations productive of severe incapacitating exacerbations occurring four or more times a year. 2. A claim of entitlement to service connection for thrombocytopenia was not received by VA prior to June 13, 2011. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 60 percent, but not higher, for service-connected rheumatoid arthritis are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5002, 5009. 2. The criteria for an effective date earlier than June 13, 2011 for the award of entitlement to service connection for thrombocytopenia have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating: Rheumatoid Arthritis Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Entitlement to service connection for rheumatoid arthritis was granted in a July 2010 rating decision. An initial 20 percent evaluation was assigned effective May 27, 2004. Throughout the period on appeal, the Veteran has asserted that he is entitled to a higher disability rating. He has reported having incapacitation periods where he has to drive to VA to get shoulder injections because he could not remove his shirt, and from when he had to get knee fluid removed because of pain and swelling. He has also reported missing many days of work because of being unable to get out of bed. He asserted that he has continuous joint pain, and that the joints that are affected vary each day; he reported taking a combination of medications for his symptoms and having regular fatigue. The Veteran's service-connected rheumatoid arthritis is rated as 20 percent disabling under Diagnostic Code 5002. This diagnostic code provides that the disability may be rated as an active process or on the basis of chronic residuals. 38 C.F.R. § 4.71a, Diagnostic Codes 5002, 5009. The Veteran's rheumatoid arthritis is currently rated as an active process. A 20 percent rating is assigned for one or two exacerbations a year in a well-established diagnosis. A 40 percent rating is assigned with symptom combinations productive of definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year. A rating of 60 percent is warranted with weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring four or more times a year or a lesser number over prolonged periods. A rating of 100 percent is warranted with constitutional manifestations associated with active joint involvement, totally incapacitating. 38 C.F.R. § 4.71a, Diagnostic Code 5002. Rheumatoid arthritis may also be rated based on its chronic residuals. Diagnostic Code 5002 permits evaluation based on limitation of motion or favorable or unfavorable ankylosis of specific joints affected, consistent with applicable rating criteria. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5002. Id. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. A Note to the Code provides that the rating for active-process rheumatoid arthritis cannot be combined with that for residuals based on limitation of motion or ankylosis; the higher rating is to be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5002. As a preliminary matter, the Board finds that rating the Veteran's rheumatoid arthritis as an active process under Diagnostic Code 5002 is appropriate. The Veteran has experienced consistent swelling and pain in various joints throughout the claims period (mainly the wrists, knees, shoulders and neck) and VA treatment records confirmed joint involvement consistent with active rheumatoid arthritis. He has had chronic immunosuppressant therapy since 2004. Clinical records document ongoing VA rheumatological treatment throughout the claims period beginning in the early 2000s. As the competent evidence, including the Veteran's own testimony at the July 2017 hearing establishes that his service-connected rheumatoid arthritis is an active and continuing disease with symptoms of joint pain and swelling, the Board finds that rating the condition as an active process rather than chronic residuals under Diagnostic Code 5002 is appropriate. After review of the evidence, the Board finds that a 60 percent rating for the Veteran's rheumatoid arthritis as an active process is warranted throughout the claims period. VA clinical records document the Veteran's ongoing symptoms of joint pain and swelling, particularly in the knees, shoulders, and neck. The Veteran has received regular VA rheumatology treatment for ongoing joint pain since 2004 and is prescribed regular medications to include Methotrexate, Prednisone, and Enbrel. Examining physicians, including the October 2004 VA examiner, have objectively observed the Veteran's joint swelling, bony prominences, joint tenderness, and limited motion of several major joints. His treating physician noted that the Veteran's rheumatoid arthritis was characterized by moderate to severe inflammation in the joints causing joint pain, swelling, and stiffness. In October 2017 the Veteran's private treatment provider, Dr. M.P., submitted a disability benefit questionnaire wherein he indicated that the Veteran had joint pain and swelling with inflammatory arthritis since 2003. The doctor observed that the Veteran needed dose care modifying agents and joint injections to control his rheumatoid arthritis, and that while he had not lost weight the Veteran had pain and a reduced range of motion in some joints. He concluded that the Veteran had eight weeks or more of incapacitation over the 12 prior months due to his rheumatoid arthritis, and specifically, that his arthritis manifested by severely incapacitating exacerbations occurring four or more times per year, which is consistent with a 60 percent disability rating. This opinion is given great weight as it corresponds with the Veteran's lay statements describing his incapacitating episodes and time lost at work due to being unable to get out of bed. The Board notes that the Veteran's treatment records describe his inability to maintain a regular schedule and function properly given his frequent periods of incapacitation. The lay and medical evidence, to include the Veteran's competent testimony as well as the doctor's 2017 assessment, establishes that the Veteran experiences symptom combinations productive of definite impairment of health objectively supported by examination findings throughout the claims period. Although the Veteran's incapacitations are objectively documented as of October 2017, the evidence of record does not suggest that the Veteran's condition was better at other times during the appeal period. Indeed, the Veteran has sought consistent treatment through VA, and during these treatments he has regularly asserted that he loses time from work and other activities due to incapacitation. He was using crutches for his knees as early as 2004, and around that time he began working from home during his knee pain flare ups. In 2012 he reported having morning stiffness for two hours each day. In giving the Veteran the benefit of the doubt, the Board finds that the evidence is consistent with a 60 percent disability rating throughout the duration of the appeal. The Board has considered whether a rating higher than 60 percent is appropriate at any time during the claims period, but finds that the Veteran's disability does not most nearly approximate the criteria associated with a 100 percent rating under Diagnostic Code 5002. As noted above, the Veteran has described periods of incapacitation, but there is no evidence of total incapacitation. The Veteran has been able to work some and maintain his activities of daily living, and he has never asserted that he is completely incapacitated. Dr. M.P.'s assessment, also clearly notes that the Veteran has not experienced total incapacitation due to the service-connected rheumatoid arthritis. The Board therefore finds that the Veteran's disability most nearly approximates the criteria for a 60 percent rating, but not higher, and to this extent the claim is granted. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for an initial rating in excess of 60 percent. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. Other Considerations 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, 369-370 (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 Veteran has asserted that fatigue is one of the main symptoms he has as a result of his rheumatoid arthritis. Although fatigue is not specifically referenced in the schedular ratings, the Board finds that the 40 percent disability rating encompasses his multiple incapacitating episodes due to fatigue and inability to get out of bed. Therefore, further consideration on an extraschedular basis is unnecessary. Earlier Effective Date: Thrombocytopenia The Veteran seeks an earlier effective date for the grant of service connection for his thrombocytopenia. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Generally, the effective date of an evaluation and award of compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). In a June 2011 rating decision, the AOJ granted entitlement to service connection for thrombocytopenia, effective June 13, 2011, the date of the receipt of the application. The Veteran has appealed this effective date assigned by the AOJ. The record on appeal shows that the first claim for entitlement to service connection for thrombocytopenia was received in June 2011. This date was the first communication pertaining to claim for service connection for thrombocytopenia. The record on appeal contains no indication otherwise that the Veteran filed earlier claims for this impairment, nor has he suggested otherwise. The Veteran has asserted that he should be entitled to an effective date of May 2009, because that is when he began having symptoms. He reported that he was only granted entitlement to service connection for thrombocytopenia as a result of it being caused by his service-connected rheumatoid arthritis. The Veteran has argued that since his rheumatoid arthritis was not granted until July 2010, he could not claim entitlement to service connection for his thrombocytopenia prior to that time. Unfortunately, the law states that the effective date will be assigned as of the date entitlement arose or the application date, whichever is later. This means that even assuming arguendo the Veteran's thrombocytopenia began in May 2009, he did not apply for entitlement to service connection until June 2011. Although the Veteran was granted entitlement to service connection on a secondary basis for the thrombocytopenia as a result of his service-connected rheumatoid arthritis, there is no indication that the Veteran attempted to apply for service connection for thrombocytopenia when his symptoms reportedly began. The Veteran has asserted that he did not apply earlier because he could not, given that his rheumatoid arthritis was not granted until 2010, but the Board notes that he did not attempt to claim entitlement to service connection prior to June 2011 (even if the claim would have been unsuccessful). The Veteran is currently service-connected for nine other disabilities, and it is a reasonable inference that he could have instituted a claim for entitlement to service connection thrombocytopenia if he had wanted to do so. More importantly, the Veteran has filed multiple other claims over the years beginning in 2002; yet there is no evidence of this claim prior to June 2011, and the Veteran has not disputed this. As set forth above, the AOJ has assigned an effective date of June 13, 2011, for the award of entitlement to service connection for thrombocytopenia, corresponding to the date of receipt of the Veteran's claim for thrombocytopenia. The Veteran has pointed to no earlier claims, formal or informal, and a review of the record reveals no communication which could be construed as a claim of service connection for this disability prior to the application date. See 38 C.F.R. §§ 3.151, 3.155 (2014). Although the Veteran reports symptoms prior to those dates and contends that his entitlement should be earlier than the application date, the law clearly provides that the effective date of an award of compensation based on an original claim shall not be earlier than the date of receipt of that claim. In this case, the Veteran's claim of entitlement to service connection for thrombocytopenia was received by VA on June 13, 2011, the effective date currently assigned. For the reasons discussed above, there is no legal basis for an earlier effective date for this claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. ORDER Entitlement to an initial disability rating of 60 percent, but no higher, for service-connected rheumatoid arthritis is granted. Entitlement to an effective date prior to June 13, 2011, for the grant of entitlement to service connection for thrombocytopenia is denied. REMAND Regrettably, remand is necessary for proper development of the claims for entitlement to increased ratings for service-connected thrombocytopenia and osteopenia. In this case, the Veteran has testified that he receives ongoing treatment through VA for these disabilities. However, the last VA treatment notes of record are from May 2015. The Veteran has also asserted that both of these disabilities have worsened, in that he has low platelet counts and that he is losing his teeth due to osteopenia. Therefore, the Board finds that updated VA treatment notes and additional examination are necessary to ascertain the current severity of his service-connected thrombocytopenia and osteopenia. The Board notes that the VA examination for service-connected thrombocytopenia should be performed by a rheumatologist, given the Veteran's combination of service-connected disabilities to include rheumatoid arthritis and thrombocytopenia. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record VA treatment records for the Veteran dated from May 2015 to present. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. The Veteran should also be provided the opportunity to submit private treatment records. 2. Once records development has been completed, schedule the Veteran for a VA examination with a rheumatologist to identify the current symptoms, severity, and impairment caused by his service-connected thrombocytopenia. The claims file should be reviewed, to include the updated VA treatment records. A complete rationale with references to treatment notes is required for all opinions rendered 3. Once records development has been completed, schedule the Veteran for a VA examination to identify the current symptoms, severity, and impairment caused by his service-connected osteopenia. The claims file should be reviewed, to include the updated VA records. The Veteran has the right to submit additional evidence and argument on matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs