Citation Nr: 21075920 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 13-31 482A DATE: December 21, 2021 ORDER Entitlement to an increased evaluation in excess of 30 percent for anemia is denied. Entitlement to an increased evaluation in excess of 10 percent for right restless leg is denied. Entitlement to an increased evaluation in excess of 10 percent for left restless leg is denied. REMANDED Entitlement to an increased evaluation in excess of 10 percent for the period from October 16, 2010 to January 29, 2020 for a right knee disability is remanded. Entitlement to an increased evaluation in excess of 10 percent for the period from October 16, 2010 to January 29, 2020 for a left knee disability is remanded. Entitlement to an increased evaluation in excess of 20 percent for the period from January 29, 2020 for a right knee disability is remanded. Entitlement to an increased evaluation in excess of 20 percent for the period from January 29, 2020 for a left knee disability is remanded. FINDINGS OF FACT 1. Review of the evidence of record shows the Veteran's anemia manifested at worst with symptoms of weakness, easy fatigability, lightheadedness, or shortness of breath and a hemoglobin level of 6.3 gm/ml. 2. The Veteran's right and left restless leg syndrome is manifested by symptoms analogous to no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 30 percent thereafter for anemia have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.117, Diagnostic Code 7700. 2. The criteria for initial ratings in excess of 10 percent for restless leg syndrome of the right lower extremities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8799-8720. 3. The criteria for initial ratings in excess of 10 percent for restless leg syndrome of the right lower extremities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8799-8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active-duty service with the Air Force from April 2003 to October 2010. This matter is on appeal from a May 2012 rating decision. The Board remanded this appeal in May 2019 and February 2021 for additional development. In a May 2019 Board decision, the Board denied an increased rating in excess of 10 percent for right and left restless leg. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in September 2020, issued a decision to vacate and remand the issue back to the Board for re-adjudication. During the pendency of the appeal, an August 2020 rating decision increased the evaluation of the Veteran's right and left knee disability to 20 percent effective January 29, 2020. As the Veteran has not indicated satisfaction with the increased evaluation, the Board finds the issue of entitlement to an increased rating for the Veteran's right and left knee disabilities remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the Board has recharacterized the issues on appeal as entitlement to an increased evaluation in excess of 30 percent for anemia; entitlement to an increased evaluation in excess of 10 percent for right and left restless leg syndrome; entitlement to an increased evaluation in excess of 10 percent for right and left knee disability prior to January 29, 2020; and an increased evaluation in excess of 20 percent for right and left knee disability since January 29, 2020. Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. 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 ; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different DC. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Anemia The Veteran is currently service connected for anemia evaluated at 30 percent under Diagnostic Code (DC) 7700. Under DC 700, a 10 percent evaluation is warranted for hemoglobin 10gm/100ml or less with findings such as weakness, easy fatigability or headaches. Id. A 30 percent evaluation is warranted for hemoglobin 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. Id. A 70 percent evaluation is warranted for hemoglobin 7gm/100ml 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). Id. A 100 percent evaluation is warranted for hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest. Id. Review of the Veteran's medical treatment record shows treatment for anemia during the applicable period to include taking medication or receiving infusion treatment. The Veteran was afforded a March 2011 VA examination. The examiner found the Veteran's anemia to be stable and that the Veteran received 3 courses of IV iron and takes daily oral supplements for treatment. The Veteran currently did not report any current symptoms and denied symptoms of pale skin, chest tightness and fatigue. The Veteran's hemoglobin results from September 2010 were noted to be at 9.5 gm/100ml. In July 2012 the treating provider noted the Veteran with significant iron-deficiency anemia. In August 2012, laboratory results documented the Veteran's hemoglobin at 8.4 gm/100ml. In November 2012, laboratory results documented the Veteran's hemoglobin at 9.3 gm/100ml; the provider noted the Veteran was prescribed iron supplements but did not take them because of aggravated constipation. A subsequent November 2012 laboratory result documented the Veteran's hemoglobin at 8.3 gm/10 ml. In December 2012 the Veteran was seen for a scheduled uterine artery embolization procedure. The Veteran's hemoglobin was measured at 7.8 hm/100 ml with no symptoms of chest pain, shortness of breath, nausea, or vomiting. In a followup December 2012 visit following the procedure, the Veteran's hemoglobin was measured at 8.0 gm/100 ml. In March 2013 the Veteran's hemoglobin was measured at 7.0 gm/100 ml. The Veteran reported occasional dizziness but denied dyspnea or palpitations. In May 2013 and September 2013, the Veteran's hemoglobin was measured at 8.5 and 8.9 gm/100 ml. In November 2014 the Veteran underwent an iron infusion treatment, the provider noted that the Veteran received this infusion without incident. In a following November 2014 statement, the Veteran reported increased nausea and fatigue following the recent infusion that caused her to miss work for a week. The Veteran described feeling more lethargic and unable to get out the car when getting home. In December 2013, the Veteran received an infusion and was noted to tolerate the procedure without adverse reaction. In a followup visit in December 2013, the Veteran reported significant side effects to include symptoms of fatigue, malaise, and body aches. The Veteran denied shortness of breath or bleeding. The Veteran's hemoglobin was measured at 12.2 gm/100 ml. In January 2016 and February 2016, the Veteran's hemoglobin was measured at 10.1 and 10.2 gm/100 ml. In April 2017 the Veteran's hemoglobin was measured at 11.1 gm/100 ml. In March 2018 the Veteran reported that for the past 3 to 4 months her fatigue level "dropped tremendously" with symptoms of no energy and a level of lethargy "beyond what Veteran was used to with low iron levels." The Veteran's hemoglobin was measured at 8.4 gm/100 ml. In a later March 2018 statement, the Veteran reported her fatigue and energy "at an all time low" and feeling constantly tired with headaches. In an April 2018 hematology visit, the Veteran reported improvement but with continued heavy periods. The Veteran described current symptoms of being tire the past few weeks with light-headedness, shortness of breath, and palpitation. The Veteran's hemoglobin was measured at 7.6 gm/100 ml. No other symptoms were documented. In a May 2018 statement, the Veteran reported that she was at "my wit's end regarding my fatigue and energy...no energy to go out for simple errands or for pleasure" along with headaches. In a separate May 2018 record, the Veteran's hemoglobin was measured at 11.5 gm/100 ml; the provider found the Veteran's blood count and iron levels to be sufficient following infusion. In November 2019 the Veteran's hemoglobin was measured at 10.1 gm/100 ml. The Veteran was afforded a January 2020 VA examination. The Veteran reported symptoms of feeling tired, light-headed, and feeling like lying down all day. The Veteran's hemoglobin was documented at 11.5 gm/100 ml based on the May 2018 laboratory result. The provider did not render a diagnosis of anemia for the Veteran and stated the Veteran's anemia had resolved based on the hemoglobin result. In August 2020 the Veteran's hemoglobin was measured at 7.3 gm/100 ml. The Veteran reported symptomatic anemia and described her symptoms to be "the same" with some dyspnea, palpitation, and decreased energy. In December 2020 the Veteran's hemoglobin was measured at 6.3 gm/100 ml. The Veteran reported feeling tired with dyspnea but denied chest pain, syncope, cough, and light-headedness. The Veteran refused a blood transfusion at this visit. In January 2020 the Veteran's hemoglobin was measured at 10.1 gm/100 ml. The Veteran received 2 infusion treatments. In June 2021 the Veteran denied symptoms of anemia. The Veteran also denied light-headedness, dizziness, syncope, shortness of breath, and palpitations. The Veteran was afforded a July 2021 VA examination. The Veteran reported symptoms of fatigue and stated that her symptoms have "stayed the same." The examiner found the Veteran was not undergoing current treatment with "watchful waiting." The Veteran's hemoglobin level was measured at 12.0 gm/100ml. The examiner found the Veteran's condition to be asymptomatic and that the reported "subjective fatigue unlikely to be due to normal lab values." After review of the evidence of record, the Board finds that entitlement to an evaluation in excess of 30 percent thereafter for the Veteran's anemia is not warranted. As addressed above, In order to warrant a higher evaluation in excess of 30 percent, the Veteran must show a hemoglobin level of 7gm/100ml or less in addition to symptoms such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). Here, while the Veteran has shown significantly lower hemoglobin levels, despite medication, such as 6.3 gm/100 ml in, her symptoms have not included or been to the equivalent severity of dyspnea on mild exertion, cardiomegaly, tachycardia, or syncope, as there has been no documentation of such symptoms in the medical evidence of record. Therefore, the Veteran is not entitled to an evaluation higher than her currently provided 30 percent for this time period. The Board notes that the Veteran's has been prescribed iron supplements to treat her anemia. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The rating criteria for Diagnostic Code 7700 do not contemplate the effects of medication on anemia and so the Board must consider the Veteran's symptoms without medication. However, even taking the Veteran's condition without medication, this disability still does not meet the criteria required for an increased evaluation in excess of 30 percent under the Rating Schedule. Although the Veteran's hemoglobin has been measured to 7gm/100ml or less, the record does not demonstrate objective evidence of dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). The Veteran had reported dyspnea or palpitations as noted in August 2020 and December 2020; however, the Veteran would also deny any symptoms of anemia in June 2021 and reported only symptoms of fatigue at the July 2021 VA examination. Review of the record does not show any objective medical evidence of dyspnea or palpitation. As such, even taking medication into account to treat the Veteran's anemia, there is no indication that the Veteran's has ever experienced the aforementioned symptoms without the prescribed medication and there is no indication that the evaluations currently awarded do not accurately contemplate the severity of her anemia. Accordingly, the evidence of record does not support a finding of an increased rating in excess of 30 percent assigned for the Veteran's anemia. 38 U.S.C. § 5110. The Board has considered the doctrine of reasonable doubt. However, as the most probative evidence of record is against the Veteran's claim, the Board finds that this doctrine is not for application. 38 U.S.C. § 5107 (b); see also, e.g., Gilbert, 1 Vet. App. at 49. Restless leg syndrome The Veteran is currently service connected for restless leg syndrome of the right and left lower extremities evaluated at 10 percent under DC 8799-8720. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. There are no specific rating criteria for restless leg syndrome in the regulatory scheme and, therefore, the Board must consider a rating by analogy for a DC that most accurately represents the Veteran's symptomatology. See 38 C.F.R. § 4.20. Under DC 8720 for the sciatic nerve, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe paralysis; a 60 percent rating is warranted for severe paralysis, with marked muscular atrophy; and a maximum 80 percent rating for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). These descriptive terms "mild," "moderate," "moderately severe", and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. That said, the term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The Veteran was afforded a February 2011 VA examination. The Veteran reported that while resting in a chair she feels the need to move her legs. The Veteran described symptoms of a "crawling sensation...constant need to move [her legs]" occurring daily. The Veteran stated that she has not sought any medical attention or treatment for her condition. The Veteran stated that massages or leg rubs from her husband provide some relief, and CPAP treatment for sleep apnea have also helped alleviate symptoms. The examiner found no history of neurological trauma or hospitalization and found the Veteran's condition to be stable. In January 2013 the Veteran denied pain in the leg, flank or hip. The Veteran also denied numbness or tingling in the extremities. In a September 2020 CAVC decision, the Court found that the May 2019 BVA decision denying increased ratings in excess of 10 percent for right and left restless leg syndrome indicated there were no VA medical center (VAMC) records since March 2016 but failed to determine whether VA satisfied its duty to assist in obtaining outstanding records to substantiate the claim for the appealed issues. The Veteran was afforded a July 2021 VA examination. The Veteran reported that her condition has remained the same with no treatment and symptoms of restless legs while trying to sleep along with intermittent pain in the lower extremities. The Veteran reported no treatment other than using a pillow between her legs to help her symptoms and sleep. Upon physical examination, the examiner found no symptoms. The Veteran demonstrated full strength and normal gait. The examiner found normal nerve involvement and no specific nerve injury identified. The examiner found no change in the Veteran's diagnosis and did not result in functional impact. After review of the evidence of record, the Board finds that an increased evaluation in excess of 10 percent for right and left restless leg syndrome is not warranted. Review of the clinical disability picture, to include objective findings shown in the evidence of record, to include medical treatment records and VA examination reports, simply do not show more than mild symptomatology. Indeed, there is no evidence of more than subjective complaints of tingling in the bilateral lower extremities. Even considering the reports that the Veteran's restless legs require use of a pillow between the legs to help with sleep, the Board does not find the impairment is more than mildly disabling when considering the frequency, severity, and muscle groups involved. Further, despite increased complaints of restless leg syndrome symptomatology, there is no evidence that the symptoms are more than mild or cause any associated functional impairments. In that regard, the current ratings account for symptoms such as numbness or tingling in the legs, and the effects that these symptoms have upon the Veteran's functional impairment. The Board has considered other possibly applicable DCs but finds that they do not provide a higher rating. For instance, DC 8521 (popliteal nerve) also provides only a 10 percent rating for mild incomplete paralysis, and DC 8103 (convulsive tic) provides no compensation for mild symptoms. As such, the Board finds that ratings in excess of 10 percent for service-connected right and left lower extremity restless leg syndrome is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The Board finds that remand is warranted for additional development. In a February 2021 Board decision, the Board requested a VA medical opinion to address the March 2011 and January 2020 VA examination findings and to describe the functional impairment of the Veteran's right and left knee during flareups as well as to report any impairment in terms of additional degree of limitation of motion. In a March 2021 VA medical opinion, the examiner opined that for the right and left knee "the Veteran was not examined during a flareup" and the examination was not medically consistent or inconsistent with the Veteran's statements describing functional loss during a flareup. The examiner indicated to "please disregard the response of unable to say without mere speculation", found there was a lack of supporting objective documentation to provide a more specific response after re-review, and did not identified no basis to offer an additional loss of motion or function during a flareup. However, it is unclear from the medical opinion which VA examination the opinion refers to, whether it is the March 2011 and January 2020 VA examination. In addition, while the March 2021 VA medical opinion requested to disregard the response of "unable to say without mere speculation", neither the March 2011 nor January 2020 VA examination made such determination. As such, the Board finds the opinion inaccurate and therefore remand warranted to obtain an adequate opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Schedule the Veteran for appropriate VA examination to assess the current severities of the Veteran's service-connected right and left knee disability. The electronic claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Upon examination of the record, the examiner should address the following: (a.) Record in detail the current symptoms and manifestations of the Veteran's right and left knee disability. (b.) The examiner is asked to indicate the point during range-of-motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. (c.) The examiner should describe the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology and/or is evidenced by visible behavior such as facial expression or wincing. (d.) If the Veteran is not suffering from a flare-up of the right and left knee disability at the time of the examination, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss, regarding any flare-ups by alternative means and to estimate the functional impact of flare-ups in terms of range of motion on the basis of that information. The examiner is advised that CAVC has held that the examiner cannot refuse to give an opinion, citing speculation, merely because the reported flareups are not directly observed, but can only do so if the "inability to provide an opinion without resorting to speculation 'reflect[s] the limitation of knowledge in the medical community at large, as opposed to insufficient information or unprocured testing. If that is the case here, the examiner should indicate such in the report. (e.) The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected parts. (f.) The examiner should identify the degree of any additional range of motion loss due to pain on use or during flare-ups. (g.) If the Veteran reports flare-ups but the examination is not conducted during a flare-up, appropriate information should be solicited from the Veteran in order to attempt to estimate any additional impairment during flare-ups. (h.) The examiner should also provide a retrospective opinion as to the nature and severity of the Veteran's right knee disability and include a discussion of the Veteran's documented medical history and complaints regarding the severity of the right and left knee prior to January 29, 2020 and from January 29, 2020. The examiner should specifically address the findings made in the March 2011 and January 2020 VA examinations as well as the March 2021 VA medical opinion. (i.) The examiner should opine and describe all symptomatology due to the Veteran's right and left knee disability during the appeal period. The examiner must comment as to whether there was pain, instability, weakened movement, excess fatigability, or incoordination on movement. Based on the medical records, examinations, and the Veteran's reports, the examiner should also note the degree to which any additional range of motion was lost during this time due to (1) pain on use, including during flare-ups and following repetitive use; (2) weakened movement; (3) excess fatigability; or (4) incoordination. (j.) The examiner should also glean information from the Veteran and his medical records regarding whether his right and left knee disability had flare-ups during the appeal period and, if so, the flares' severity, frequency, duration, and functional loss manifestations. The examiner should estimate the degree to which range of motion was lost during a flare-up and must describe any other functional impairment due to flare-ups. (k.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and the Veteran's symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. (l.) A complete rationale is requested for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.