Citation Nr: 20002011 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 08-37 876 DATE: January 9, 2020 ORDER Entitlement to an initial rating higher than 60 percent for systemic lupus erythematosus (lupus), prior to January 12, 2011, is denied. FINDING OF FACT For the entire appeal period, the Veteran’s lupus symptoms did not more nearly approximate severe impairment of health with acute, frequent exacerbations and did not more nearly approximate visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features or with six or more characteristics of disfigurement. CONCLUSION OF LAW Prior to January 12, 2011, the criteria for an initial disability rating higher than 60 percent for lupus have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.27, 4.71a, Diagnostic Code (DC) 6350, 7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1985 to August 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in August 2011. A transcript of that hearing has been associated with the claims file. The VLJ who conducted the hearing is no longer employed at the Board. In March 2016, the Board notified the Veteran of this fact and provided her the opportunity to testify at another hearing before a different VLJ. The Veteran responded in April 2016 that she wished to proceed without an additional hearing. Thus, there is no outstanding hearing request. In June 2018, the Board assigned a 60 percent disability rating, and no higher, prior to January 12, 2011 for the Veteran’s lupus. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 Joint Motion for Partial Remand (JMPR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate that part of the June 2018 Board decision denying entitlement to an initial evaluation in excess of 60 percent for lupus prior to January 12, 2011 and remand that matter for re-adjudication. The Court granted the JMPR in an April 2019 Order. 1. Entitlement to an initial rating higher than 60 percent for lupus prior to January 12, 2011 Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). With the initial rating assigned with the award of service connection for a disability, “staged” ratings to reflect distinct periods when different levels of impairment were shown are for consideration. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). Prior to January 12, 2011, the Veteran is in receipt of a 60 percent rating for her service-connected lupus for the entire appeal period. The Veteran contends that a higher rating is warranted. See July 2007 statement. The only available higher schedular ratings are found under 38 C.F.R. § 4.118, DC 7800 and 38 C.F.R. § 4.88b, DC 6350. Under DC 7800, an 80 percent rating may be assigned based on evidence of visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, or lips); or six characteristics of disfigurement. The eight characteristics of disfigurement, for purposes of evaluation under §4.118, are: (1) a scar of 5 or more inches (13 or more centimeters) in length; (2) a scar of at least one-quarter inch (0.6 centimeters) wide at widest part; (3) surface contour of a scar elevated or depressed on palpation; (4) a scar adherent to underlying tissue; (5) skin hypo- or hyper-pigmented in an area exceeding 6 square inches (39 square centimeters); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 square inches (39 square centimeters); (7) underlying soft tissue missing in an area exceeding 6 square inches (39 square centimeters); and (8) skin indurated and inflexible in an area exceeding 6 square inches (39 square centimeters). 38 C.F.R. § 4.118, DC 7800, Note (1). Alternatively, under DC 6350, as noted above, a 100 percent rating is available for systemic lupus erythematosus which is acute, with frequent exacerbations, producing severe impairment of health. A November 2007 VA dermatology consultation documented small active skin lesions on the Veteran’s fingers and feet, to include heels and toes. There were no active skins lesions elsewhere on her body. There was no further mention of any skin condition in the subsequent treatment records. Further, during the applicable time period, there were no lesions or scars on the Veteran’s face. The Veteran’s skin condition fails to meet the required six characteristics of disfigurement under DC 7800. Moreover, there is no evidence in the record of visible or palpable tissue loss, gross distortion, or assymetry of any facial features as noted in DC 7800. Thus, an 80 percent disability rating is not warranted during any part of the appeal period under DC 7800 for the Veteran’s service-connected lupus. As to DC 6350, the evidence does not show that the Veteran’s symptoms more nearly approximated acute, with frequent exacerbations, producing severe impairment of health. The terms “frequent” and “severe impairment of health” are not defined in the regulation. Merriam-Webster’s Collegiate Dictionary, 11th edition (2012), defines “severe” as meaning “causing discomfort or hardship: harsh,” and “very painful or harmful” (p. 1140) and defines frequent as “common, usual,” and “happening at short intervals: often repeated or occurring.” (p. 500). The Veteran reports that she is a teacher. She did not report any missed days from work because of her lupus prior to January 12, 2011. VA medical records dated in March 2005 document achiness and the Veteran’s concern regarding suspected photo-sensitivity. In November 2005, she was seen for persistent joint tenderness, sun sensitivity, and fibromyalgia. She was later seen at VA in April 2006 for wide-spread pain. Fibromyalgia and lupus were both discussed at that appointment. In December 2007, the Veteran was provided a VA general medical examination. At that time, she reported having joint pain, nasal ulceration, photosensitivity, a facial rash, weakness, fatigue, difficulty concentrating, and problems with sleep. The examiner opined that the Veteran’s fibromyalgia symptoms were causing her sleep difficulty, fatigue, irritable bowel syndrome, difficulty concentrating, joint pain, and muscle pain. He also opined that her lupus disorder was causing the malar rash, photo-sensitivity, arthritic pain, and leukopenia. Private medical records dated in March 2008 show that Dr. R.A. noted slight erythema on the Veteran’s cheeks that would come and go, sun sensitivity, and dry skin. The Veteran reported having intermittent blisters on her nose and lips, but none were found upon examination. She also indicated that she had hair loss but thinning of her hair was not seen upon examination. She further reported experiencing joint pain at that time. Dr. R.A. noted the presence of lupus and also found definite fibromyalgia with trigger points and a fibromyalgia-related sleep disorder. In June 2008, Dr. R.A. noted that the Veteran had had leukopenia, anemia, hair loss, and positive ANA, but she was not experiencing increased rashes, joint swelling, or inflammation. During a November 2009 VA examination, the Veteran reported she was not on any medications for lupus. The examiner indicated that there were no objective symptoms to diagnose a recurrence or flare of the Veteran’s lupus. Indeed, the examiner indicated that the Veteran’s only manifestations at this point were a slight malar rash and a small rash in her right lower leg. She was anemic, but iron-deficient anemic, which the examiner noted is not associated with lupus. The examiner explained that lupus tends to cause anemia of chronic disease, in which iron and other iron studies such as total iron binding capacity, B12, and folic acid are normal. The examiner also noted that a gastrointestinal workup was planned regarding her anemia. The examiner further noted that the Veteran’s platelets are normal as well as her complete blood count, which could be a manifestation hematologically of her lupus. There was no renal involvement. Her urinalysis was clear. She had no pleurisy or pericarditis that might be associated with inflammatory effects of lupus. The examiner noted that the Veteran did not have any “physician-sanctioned days lost secondary to acute flares, incapacitation of” her lupus. Treatment records dated prior to January 2011 confirm that the Veteran was not on medication for her lupus. She endorsed joint pain and was treated for dry eyes. Iron deficient anemia was noted, but also noted that it was likely due to her vegetarian diet or history of duodenal ulcer. She requested Flexeril for treatment of her lupus and/or fibromyalgia. A VA medical opinion was also obtained in July 2017. The VA examiner reviewed the medical evidence for the period of 2005 to 2011 and determined that the Veteran’s service-connected conditions had caused a mild to moderate impact on her employment during exacerbations in that time period. He speculated that she may have lost four days of work per year but noted that that time did not include healing days. After reviewing the medical evidence, the examiner noted that the Veteran had two appointments for lupus symptoms in 2005, which included photosensitivity, nasal ulcerations, gastrointestinal upsets, and hand and foot pain. In 2006, she had had three visits for a flare-up of lupus. In 2007, the Veteran had four appointments for various conditions, to include lupus as well as a dermatology appointment for eczema and finger-tip fissuring. In 2008, she had three appointments for various conditions, including lupus, as well as an appointment for eczema, arthralgias, and myalgias, and an additional flare-up of the myalgias later that year. In 2009, the Veteran had three appointments for pain in the hands and hips, myalgias, and myositis, although her lupus had been noted to be in remission. In 2010, the Veteran had five appointments. One of those appointments was for lupus; however, she also had appointments for fibromyalgia pain and eczematous plaques with bleeding and fissures in the fingertips. The Board appreciates the Veteran’s thoughtful and eloquent attempt to characterize the nature, severity, and frequency of the symptoms of her lupus. The Veteran’s ability to work every day as a teacher, and the lack of significant examination findings indicating that lupus caused acute exacerbations, leads the Board to conclude that prior to January 12, 2011, the lupus symptoms do not warrant a rating higher than 60 percent. Prior ot January 12, 2011, her symptoms did not cause discomfort or harm, or were very painful, often enough or at frequent enough intervals, to warrant the conclusion that they more nearly approximate frequent exacerbations productive of severe impairment of health. Nor is the evidence approximately balanced in this regard. In reaching this conclusion, the Board has considered both the clinical evidence of record, as well as the Veteran’s competent statements regarding the impact of her symptoms. She reported experiencing symptoms such as photosensitivity, joint-line tenderness, face rashes, and episodes of nasal ulceration during exacerbations. Even accepting her statements as true and considering them in conjunction with the clinical evidence of record, these symptoms do not rise to a level more nearly approximating the criteria for a 100 percent rating under DC 6350. Although these symptoms/exacerbations impacted the Veteran prior to January 12, 2011, the Board cannot find that they produced “severe impairment of health” during that timeframe. Neither the 2009, nor 2017 VA examiners described the Veteran’s lupus as causing severe impairment of health. In fact, the 2017 examiner opined that her symptoms caused a mild to moderate impact on her employability during an exacerbation prior to January 12, 2011. Importantly, the Veteran’s competent lay statements describe the impact of her lupus prior to January 12, 2011, but these symptoms, again, do not rise to a level of productive of severe impairment of health. There is no question that prior to January 12, 2011, the Veteran’s lupus symptoms were significant, but her functional impairment is captured by the currently assigned 60 percent rating. Further, her joint symptoms have been mostly attributed to her service-connected fibromyalgia, which is not the subject of this appeal. Thus, prior to January 12, 2011, the most probative evidence of record shows that her lupus symptoms caused exacerbations lasting a week or more and occurred two or three times per year. This is supported by both the lay and medical evidence of record, and bolstered by the documentation of the significant uptick in lupus symptoms after January 12, 2011. The Board is sympathetic to the Veteran’s contention that separate ratings are warranted for the systemic lupus that affects her joints and muscles and the discoid lupus that affects her skin. The Board is bound by the laws and regulations that apply to veterans claims. Each diagnostic code specifically indicates that ratings for lupus under one cannot be combined with a rating for lupus under the other. The Board is prohibited from granting separate ratings in this situation and has instead reviewed each potentially applicable diagnostic code and assigned the highest possible rating under any potentially applicable diagnostic code throughout the appeal period. An initial rating higher than 60 percent prior to January 12, 2011 is not warranted. As the preponderance of the evidence is against a higher or separate rating for any portion of the appeal period, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.