Citation Nr: 20040271 Decision Date: 06/12/20 Archive Date: 06/12/20 DOCKET NO. 05-22 934 DATE: June 12, 2020 ORDER Prior to December 9, 2018, entitlement to a disability rating in excess of 30 percent for service-connected thrombotic thrombocytopenic purpura (TTP) is denied. From December 9, 2018, a rating of 70 percent, but not higher, for TTP is granted. Service connection for hives, as secondary to TTP, is denied. Service connection for peripheral neuropathy of the upper extremities, to include as secondary to TTP and anemia, is denied. FINDINGS OF FACT 1. Prior to December 9, 2018, the Veteran’s stable platelet count was not below 70,000. 2. Medical evidence demonstrated the Veteran’s continuous medication is required to control her TTP. 3. The Veteran’s hives were not caused or aggravated by her service-connected TTP. 4. The Veteran’s peripheral neuropathy of the upper extremities was not caused or aggravated by her service-connected TTP or anemia. CONCLUSIONS OF LAW 1. Prior to December 9, 2018, the criteria for entitlement to a rating in excess of 30 percent for TTP have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.117, Diagnostic Code (DC) 7705. 2. From December 9, 2018, the criteria for entitlement to a rating of 70 percent for TTP, but not higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.117, DC 7705. 3. The criteria for service connection for hives, as secondary to TTP, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for service connection for peripheral neuropathy of the upper extremities, as secondary to TTP and anemia, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to September 1993, with a prior period of active duty for training (ACDUTRA) from March 1984 to August 1984. The case is on appeal from October 2004, August 2007, and January 2009 rating decisions. In March 2010, the Veteran testified at a Board hearing. A transcript of that hearing has been associated with the Veteran’s file. The Veterans Law Judge who conducted that hearing is no longer at the Board. The Veteran declined another hearing in an August 2017 correspondence. The claims were last before the Board in April 2018. At that time, the Board remanded the claims for further development. Issues in addition to those currently being considered were certified to the Board. Those issues will be addressed in a later decision. Additional evidence was submitted after the July 2019 supplemental statement of the Case (SSOC). In an April 2020 letter, the Veteran’s representative waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating 1. A rating in excess of 30 percent for TTP. General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Specific Rating Criteria The Veteran’s TPP has been rated under DC 7705 throughout the appeal period, which provides a zero percent rating is assigned for a stable platelet count of 100,000 or more, without bleeding; a 30 percent rating is warranted for a stable platelet count between 70,000 and 100,000, without bleeding; a 70 percent rating is warranted for a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding; and a 100 percent rating is warranted for a platelet count of less than 20,000, with active bleeding, requiring treatment with medication and transfusions. 38 C.F.R. § 4.117, DC 7705. DC 7705 was renamed from “Thrombocytopenia, primary, idiopathic, or immune” to “Immune thrombocytopenia” and amended, effective December 9, 2018. 83 Fed. Reg. 54250 (Oct. 29, 2018). The amended criteria can only be used from the effective date forward. Under the revised version of DC 7705, a noncompensable rating is assigned for thrombocytopenia in remission, or if active but asymptomatic, with a platelet count above 50,000. A 10 percent rating is assigned with a platelet count higher than 30,000 but not higher than 50,000, not requiring treatment. A 30 percent rating is assigned with a platelet count higher than 30,000 but not higher than 50,000, with either immune thrombocytopenia or mild mucous membrane bleeding which requires oral corticosteroid therapy or intravenous immune globulin. A 70 percent rating is assigned when the thrombocytopenia requires immunosuppressive therapy; or for a platelet count higher than 30,000 but not higher than 50,000, with history of hospitalization because of severe bleeding requiring intravenous immune globulin, high-dose parenteral corticosteroids, and platelet transfusions. A 100 [maximum schedular] rating is assigned if chronic refractory thrombocytopenia requires chemotherapy; or with a platelet count 30,000 or below despite treatment. 38 C.F.R. § 4.117 (2019). Analysis The Veteran filed the claim for increase in February 2004. She provides that without her medication, her platelet count would be below 70,000. Therefore, she contends her disability more closely approximates the 70 percent rating. Medical records include a March 2003 letter from a private physician, Dr. S.M. He noted the Veteran’s platelet count was 93,000 on the current medication regimen, including 5mg of prednisone. In September 2003, while Dr. S.M. described the Veteran as clinically stable, she had a platelet count stable at 249,000. In November 2003, Dr. S.M. noted the Veteran’s platelet count was greater than 200,000. In February 2004, Dr. S.M. provided the Veteran’s platelet count dropped slightly to 185,000. The Veteran submitted a statement in February 2004 stating she had a relapse on February 23, 2004, and medical records confirmed the same. The medical note provided the Veteran underwent immediate plasma exchange and IV steroids. Upon admission, she had an exacerbation of platelet count to 3000-6000. At the time of discharge, her platelet count was greater than 300,000 with normalization of her LDH. It was noted the Veteran should continue medication, including tapering of prednisone. In March 2006, Dr. S.M. noted the Veteran had not had any recent flare-ups, but she was still taking 10mg of prednisone daily, along with other medications. Her platelet count was 260,000. Medical records also provide her platelet counts were the following: March 2003 (293,000); May 2003 (263,000); September 2003 (249,000); October 2003 (196,000); January 2004 (210,000); March 2004 (291,000); April 2004 (315,000; 251,000); September 2004 (223,000); November 2004 (259,000); January 2005 (313,000); February 2005 (275,000); March 2005 (302,000); August 2005 (229,000); October 2005 (263,000); November 2005 (237,000); March 2006 (268,000); September 2006 (212,000); February 2008 (241,000); October 2008 (199,000); February 2009 (232,000); December 2009 (181,000); March 2010 (201,000; 263,000); December 2010 (273,000); June 2011 (193,000); October 2011 (163,000); September 2012 (173,000); December 2012 (163,000); May 2013 (186,000); September 2013 (187,000); and January 2014 (185,000). An October 2007 medical note from Dr. S.M. provided the Veteran was still on active medications for TTP, including Persantine, Prednisone, and aspirin therapy. Medical records confirm the Veteran has remained on active medication to control her TTP. A medical note from October 2015 provides the Veteran continues taking prednisone because each time she has tried to be weaned off, her platelets drop significantly. In March 2016, Dr. S.M. provided the Veteran’s platelet count has been under good control and there has been no evidence of recurrence of TTP since being on medication. Additionally, Dr. S.M. said there is a reasonable possibility that her disease could flare off these medications. The Veteran was afforded an April 2004 VA examination. The examiner provided the Veteran has had 3 episodes of TTP flaring, with the most recent in February 2004. The examiner noted the Veteran underwent three treatments of plasmapheresis, but her blood counts remain depressed. The Veteran reported fatigability and weakness all the time, debilitating headaches almost every day, and occasional nosebleeds. The examiner provided the Veteran’s disease is not in remission, is chronic, and relapsing. Further, the examiner stated when the Veteran has relapses, it puts her at significant risk for morbidity, and that the Veteran will likely carry the diagnosis of TTP for the rest of her life. A December 2011 VA examination addressing hematologic and lymphatic conditions provided continuous medication is required to control the Veteran’s TTP. At the time of the examination, while the Veteran was still taking medication, the examiner noted the TTP as in remission. The examiner provided that in December 2010, the Veteran’s platelet count was 273,000. The examiner also noted that the Veteran’s platelet counts on record with the VA since 1999 have been in the normal range. Additionally, there was no bleeding associated with her TTP. An August 2014 VA examination provided continuous medication is required to control the Veteran’s TTP. The examiner noted the TTP was still in remission. He also noted the Veteran had a stable platelet count of 100,000 or more. Specifically, the Veteran’s platelet count was 179,000. Upon remand, a July 2019 addendum VA medical opinion was provided addressing whether the Veteran’s platelet count would be under 70,000 if she were not on medication. The examiner provided that by definition, a diagnosis of TTP requires a platelet count less than 150,000. Therefore, without medication, the Veteran’s platelet count would be below 150,000. The examiner concluded that the Veteran would at least as likely as not continue to experience acute episodes of active TTP causing her platelet count to again fall below 70,000 if she were taken off medication treatment. Considering the evidence of record, the Board finds that no more than the already-assigned rating of 30 percent is warranted until December 9, 2018. For this time period, the Veteran’s platelet count ranged between 93,000 to 315,000. The records do not reflect a stable platelet count between 20,000 and 70,000 at any time during the appeal period, except for when she was admitted to the hospital in February 2004, when she had a platelet count briefly between 3000-6000. However, at the time of discharge about a month later, her platelet count was above 300,000. Thus, the Board finds that a disability rating in excess of 30 percent is not warranted prior to December 9, 2018. As the revised DC 7705 became effective December 9, 2018, the Board finds that a higher rating of 70 percent is warranted from that date. Evidence of record demonstrates that the Veteran’s symptoms are best contemplated by a 70 percent rating, but no higher. The Board is cognizant of the Veteran’s report confirmed by the medical records that she has been on continuous medication in order to control her flare-ups and that she has been hospitalized for blood plasma transfusions. In the July 2019 addendum VA medical opinion, the examiner stated the Veteran has exhibited platelet counts well below 70,000 requiring plasma exchange on at least 3 prior occasions. The examiner further opined that without medication, the Veteran’s platelet count would again fall below 70,000. Based upon the objective and subjective evidence of record, the Veteran is warranted a 70 percent rating under the new DC 7705 from December 9, 2018. See § 4.7. However, a 100 percent rating is not warranted, as there is no evidence of chemotherapy or a platelet count of 30,000 or below despite treatment. In so far as the Veteran believes there was error in the rating assigned in 1993, she must raise a separate claim based on clear and unmistakable error (CUE), which must be pled with specificity as to the error of fact or law alleged. See Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom. Andre v. Principi, 301 F.3d 1354 (Fed. Circ. 2002); see also Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (holding that to raise CUE there must be some degree of specificity as to what the alleged error is and persuasive reasons must be given as to why the result would have been manifestly different). See also Jarrell v. Nicholson, 20 Vet. App. 326 (2006). In sum, the evidence does not support an increased rating to 70 percent for the Veteran’s TTP prior to December 9, 2018, under the previous provisions of DC 7705. The preponderance of evidence weighs against a rating in excess of 30 percent for TTP prior to December 9, 2018. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. However, the evidence does support an increased rating to 70 percent for the Veteran’s TTP from December 9, 2108, under the new provisions of DC 7705.   Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. 2. Service connection for hives as secondary to TTP. The Veteran expressly contends she suffers from hives as a result of the medication taken for her service-connected TTP. Private medical records from May 1994 provide the Veteran had a dry rash on her face, appearing streaky in characteristic. However, the physician noted the Veteran’s TTP was not active at that time. In October 2003, the Veteran complained of a rash on her neck, for which she took prednisone, ASA, folic acid, and Persantine. Medical records also note a February 2004 procedure, during which the Veteran complained of itching around both eyes and received 25mg of Benadryl by IV for a hive under her left eye. Records provide the Veteran reported a “skin tag” under her left eye in May 2007. Post-service medical records also note the Veteran’s October 1995 treatment for TTP was complicated by an itchy rash, which developed with each plasma exchange. The Veteran was treated with Benadryl, which was effective. In April 2004, the Veteran complained of a rash and blisters on her finger. She was diagnosed with contact dermatitis, and it was noted she was possibly exposed to poison ivy. Treatment for the rash included hydrocortisone cream and Benadryl. She also complained of a rash on her left hand in May 2004. The “itchy rash” was completely resolved in June 2004. In December 2011, a VA physician found the Veteran was diagnosed with urticaria and alopecia. The Veteran reported having hives 3 times a year for a short duration. She stated they respond well to being treated with Benadryl. In July 2007, the Veteran was afforded a VA examination. The Veteran reported increasing the doses of prednisone taken for TTP when she recognizes increasing symptoms she associates with TTP, including hives. At that time, the Veteran reported experiencing hives 3 or 4 times a year, and that they are debilitating for a short period of time. She uses Benadryl to treat them. Upon examination, the examiner observed there were no current manifestations of hives. Further, while the examiner notated the diagnoses of urticaria and alopecia, neither were manifesting at the time. The examiner opined that it is less likely as not that the Veteran’s hives are related to medications taken for TTP. This was based on the rationale that there was no information in microdemics or other drug indexes which indicate hives would be an expected side effet of the medications taken for TTP. The Veteran was afforded a December 2011 VA examination regarding the Veteran’s hives. The examiner opined that it is less likely as not that the Veteran’s hives are related to medications taken for service-connected TTP. As rationale, the examiner provided there was no information in micromedics or other drug indexes which indicated that hives would be an expected side effect of the medications the Veteran is currently using for her TTP. Further, having reviewed the Veteran’s medical records, the examiner found no evidence of chronic urticaria or alopecia at the time and that they are not related to TTP, anemia, or treatment received. Upon remand, another VA examination was afforded the Veteran in August 2014. Having reviewed the Veteran’s claims file, the examiner opined the Veteran’s hives are less likely as not a complication of TTP, anemia, or long-term steroid use. As rationale, the examiner stated that current medical literature does not indicate this condition is caused by TTP, anemia, or steroids. Upon further remand, the Veteran received an addendum VA medical opinion in July 2019 addressing the potential aggravation of hives by the Veteran’s TTP. After a review of the Veteran’s claims file, the examiner concluded hives are less likely as not aggravated beyond its natural progression by service-connected TTP, anemia, or steroid medications. As rationale, the examiner provided that based on commonly accepted medical literature, TTP, anemia, and steroid medications do not cause or aggravate hives. Further, there is no pathophysiological basis for the connection. In fact, the examiner stated, steroid medications such as prednisone are prescribed for the treatment of hives. Evidence of record also includes a statement submitted by the Veteran in July 2019 reporting she continuously has hives, and that she takes over the counter medication, especially while having treatment for TTP. The Board acknowledges the Veteran’s contention that her hives are related to her TTP. However, as a lay person, the Veteran has not shown specialized training sufficient to render such an etiology opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the etiology of hives is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of the causation or onset of such a disorder involves a medical subject concerning an internal process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, the Board finds the VA medical examinations and addendum opinion are the most probative evidence, as they are based on an accurate medical history, examination, consideration of medical literature/knowledge, and are coupled with a comprehensive explanation. The Board also notes that no medical opinion was submitted in support of a nexus for the claim. In sum, the Board finds that the Veteran’s hives were not caused or aggravated by her service-connected TTP or medications taken for it. As a result, the preponderance of the evidence is against the claim, there is no doubt to be resolved, and service connection for hives is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Service connection for peripheral neuropathy of the upper extremities, to include as secondary to TTP and anemia. The Veteran contends she has peripheral neuropathy of the upper extremities as a result of her service-connected TTP and anemia. STRs include a July 1993 notation in which the Veteran reports experiencing tingling on the right side of her body a few days prior to evaluation by the hematologist. Peripheral neuropathy is noted on neither the enlistment nor separation examinations. Medical records in May 1994 explicitly provided the Veteran did not have any symptoms of peripheral neuropathy. In September 2007, the Veteran complained of bilateral wrist pain and weakness of grip. At that time, she denied any numbness or tingling. In February 2008, medical records provide the Veteran reported intermittent bilateral hand weakness, resulting in her dropping things. She also reported experiencing hand tingling for 1 year. In March 2008, private treatment records provided there was no evidence of peripheral neuropathy. However, the private physician noted the Veteran’s paresthesias and pain radiates in such a fashion as to suggest the possibility of lumbar disc disease. As of March 2010, the Veteran reported chronic bilateral wrist and hand pain. An October 2007 private medical opinion provided that because of the Veteran’s long-term difficulties with TTP, she has problems with arthritis, swelling, and neuropathy. The private physician provided these are complications of both her disease and its therapy, to include long-term steroid use. The Veteran was afforded an October 2008 VA examination. The Veteran reported that, beginning two years ago, she began having sensory symptoms in both hands with loss of sensation and weakness, losing her grip. The examiner diagnosed the Veteran with clinical signs of very mild, predominantly sensory peripheral neuropathy affecting median and ulnar nerve in the upper extremities. The examiner concluded it is most likely that the Veteran’s peripheral neuropathy is caused by or the result of either TTP or its treatment. Upon remand, another VA examination was afforded the Veteran in December 2011. The Veteran reported that her doctor told her she has Raynaud’s syndrome and that she has tingling at times in her fingertips. However, the examiner found the Veteran does not have a diagnosis for peripheral neuropathy of the upper extremities and that vibratory sense and light touch are intact. As such, there is no evidence of peripheral neuropathy. Upon additional remand, the Veteran received a VA examination in August 2014. The examiner found the Veteran was diagnosed with bilateral cubital tunnel syndrome in 2008 and with Raynaud’s phenomenon and possible mixed connective tissue disease in December 2010. The Veteran reported numbness, tingling, and swelling in her hands since she was in service, that it occurs intermittently, and is worse in cold weather. She also complained of redness, burning in her hands and neck with exposure to cold weather, but denied any current treatment. The examiner concluded the Veteran’s peripheral neuropathy is less likely than not proximately due to or the result of the Veteran’s service-connected condition. As rationale, the examiner provided the Veteran has an ulnar nerve entrapment at the elbow, and this is not a recognized complication of TTP, anemia, or chronic steroid use. Upon further remand, the Veteran received a July 2019 addendum VA medical opinion addressing the potential aggravation of bilateral peripheral neuropathy of the upper extremities by the Veteran’s TTP, anemia, or steroid medications. The examiner concluded the Veteran’s neuropathy of the bilateral upper extremities is less likely as not aggravated beyond its natural progression by TTP, anemia, or steroid medications. As rationale, the examiner provided the Veteran was diagnosed in November 2008 with bilateral ulnar neuropathy at the elbows, which is cubital tunnel syndrome. Based on commonly accepted medical literature, TTP, anemia, and steroid medication use neither cause nor aggravate bilateral cubital tunnel syndrome. Further, there is no pathophysiological basis for this. The examiner additionally provided that sensory symptoms from cubital tunnel syndrome are brought on by sustained elbow flexion, such as leaning on the elbow while talking on the phone or repeated forearm pronation and supination. Evidence of record also included a July 2019 statement submitted by the Veteran, reporting that she has Raynaud’s syndrome due to the poor circulation in her body. The Board acknowledges the Veteran’s contention that her peripheral neuropathy of the upper extremities is related to her TTP and anemia. However, as a lay person, the Veteran has not shown specialized training sufficient to render such an etiology opinion. See Jandreau, 492 F.3d at 1376-77. In this regard, the etiology of peripheral neuropathy is a matter not capable of lay observation and requires medical expertise to determine. Specifically, the question of the causation or onset of such a disorder involves a medical subject concerning an internal process extending beyond an immediately observable cause-and-effect relationship. Woehlaert, 21 Vet. App. at 462. Therefore, the Board finds the August 2014 VA medical examination and July 2019 addendum VA medical opinion are the most probative evidence, as they are based on an accurate medical history, examination, consideration of medical literature/knowledge, and are coupled with a comprehensive explanation. They both address the diagnosis of the ulnar nerve and how it relates to the symptoms experienced by the Veteran. In sum, the Board finds the Veteran’s peripheral neuropathy of the upper extremities was not caused or aggravated by her service-connected TTP or anemia. As a result, the preponderance of the evidence is against the claim, there is no doubt to be resolved, and service connection for peripheral neuropathy of the upper extremities is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, Associate 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.