Citation Nr: 21012989 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-30 180 DATE: March 8, 2021 ORDER Entitlement to a compensable rating for idiopathic thrombocytopenia purpura (ITP) is denied. REMANDED The claim of entitlement to service connection for obstructive sleep apnea (OSA), including as secondary to ITP, is remanded. The claim of entitlement to service connection for a foot disability, to include plantar fasciitis, including as secondary to ITP and/or undifferentiated systemic rheumatic disease, is remanded. The claim of entitlement to an effective date prior to January 11, 2016 for the assignment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is remanded. FINDINGS OF FACT 1. The Veteran had a stable platelet count above 100,000 during the entire course of this appeal. 2. The Veteran’s ITP disability picture is not exceptional with related factors such as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for ITP have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.117, Diagnostic Code (DC) 7705. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1996 to May 1998. His claims come before the Board of Veterans' Appeals (Board) on appeal of January 2014 and May 2016 Department of Veterans Affairs (VA) rating decisions. The Board remanded these claims to the Agency of Original Jurisdiction (AOJ) in April 2019. At that time, the issues on appeal included entitlement to service connection for a gastrointestinal disability, including hiatal hernia and gastroesophageal reflux disease. However, in an October 2020 Decision Review Officer decision, the AOJ granted this claim. It is thus no longer before the Board for appellate review. Increased Rating Entitlement to a compensable rating for ITP The AOJ has rated the Veteran’s ITP zero (0) percent disabling under 38 C.F.R. § 4.117, DC 7705. During this appeal, VA amended the criteria for rating disorders of the hematologic and lymphatic systems, which include disorders rated under 7705, and renamed DC 7705 from "Thrombocytopenia, primary, idiopathic, or immune" to "Immune thrombocytopenia", effective from December 9, 2018. 83 Fed. Reg. 54250 (Oct. 29, 2018). In evaluating this claim, the AOJ considered the former and revised criteria of DC 7705. The Veteran seeks a compensable rating for his ITP. He claims that, since he developed and was profiled for this condition in service, it has hampered his ability to do certain work and activities, prevented him from continuing his military career and precluded him from being part of the Warrior Transition Program. He asserts that this claim should be granted on an extraschedular basis because his complaints of associated fatigue and excessive bruising are not adequately addressed by the schedular criteria. He requests the benefit of the doubt in resolution of his claim. The preponderance of the evidence is against this claim. The former DC 7705 provided that a noncompensable rating was assignable when there is a stable platelet count of 100,000 or more, without bleeding. A 30 percent rating was assignable for a stable platelet count of 70,000 to 100,000, without bleeding. A 70 percent rating was assignable for a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding. A 100 rating was assignable for a platelet count less than 20,000 with active bleeding, requiring treatment with medication and transfusions. 38 C.F.R. § 4.117 (2017). The revised DC 7705 provides that a 0 percent rating is assignable for thrombocytopenia in remission, or if active but asymptomatic, with a platelet count above 50,000. A 10 percent rating is assignable with a platelet count higher than 30,000 but not higher than 50,000, not requiring treatment. A 30 percent rating is assignable 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 assignable 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 rating is assignable if chronic refractory thrombocytopenia requires chemotherapy; or with a platelet count 30,000 or below despite treatment. 38 C.F.R. § 4.117. According to post-service treatment records and VA examination reports mentioned below, until very recently, the Veteran’s ITP remained stable, requiring no treatment. In June 2013, when the Veteran underwent a VA examination, he reported bruising easily but denied bleeding, petechiae and purpura. The examiner noted that the ITP was in remission (watching and waiting status) and that the Veteran was not on treatment and had a stable platelet count of 100,000 or more. During treatment visits and testing from May 2014 to February 2020 and a March 2016 VA examination, providers and an examiner noted that the Veteran’s platelet count was stable and normal (all above 100,000). One provider characterized the thrombocytopenia as resolved, and, in March 2016, the VA examiner noted that there were no symptoms associated with the ITP. In August 2019, another VA examiner attributed the fatigue the Veteran was reporting to a stroke, not ITP. In January 2020, during a VA examination, the Veteran’s platelet count was normal (237,000). An examiner indicated that the Veteran had begun hydroxychloroquine treatment and characterized the Veteran’s ITP as active, not in remission, but not affecting the Veteran’s ability to work. The examiner also indicated that the Veteran had not had bruising for years and had no fatigue symptoms. Since 2013, the Veteran has reported ITP-related bruising and his ITP, which was in remission for approximately two decades, now requires medication for control. The Veteran’s platelet count, however, has remained stable, above 100,000, and that fact alone precludes the assignment of a compensable schedular rating for the ITP, whether evaluated under the former or revised criteria of DC 7705. The question that remains is whether a compensable rating may be assigned on an extraschedular basis. The determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b)(1) is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). If the Board determines that (1) the schedular rating does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. 38 C.F.R. § 3.321(b)(1). If the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director of Compensation Services for consideration of an extraschedular evaluation. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. 111. In this case, the bruising the Veteran reports is not contemplated in the 0 percent rating assigned his ITP (platelet number alone precludes satisfaction of former and revised criteria for next higher ratings), and although no medical professional has confirmed such bruising, given its lay-observable nature, the Veteran is competent to report that it occurs. The Board need not refer this matter for extraschedular consideration, however, as the ITP disability picture is not exceptional with related factors such as marked interference with employment or frequent periods of hospitalization. The Veteran has worked during this appeal, and his ITP has not interfered, markedly or otherwise, with his ability to do so. In additional, his ITP has not required any, let alone frequent, hospitalization. According to a December 2020 written statement from the Veteran’s representative, this is insufficient reasoning to deny this claim. The representative claims that VA has failed to address the Veteran’s symptoms not contemplated by the rating schedule and how they functionally impact his life. However, with regard to his ITP, the Veteran has reported two symptoms only: fatigue and bruising. As previously indicated, the fatigue has been attributed to his service-connected stroke, for which the Veteran is already receiving compensation, not ITP. In addition, the Veteran has never described any functional loss secondary to the bruising, and it’s not a symptom that would interfere with work or necessitate hospitalization. In a January 2015 written statement, the representative indicated that the Veteran had pain interfering with his ability to work, but the Veteran has never reported that symptom in relation to his ITP. The Board reminds the representative that the Veteran is also service connected and receiving compensation for disabilities of which the IDT was the initial manifestation, including lupus and undifferentiated systemic rheumatic disease, and the symptoms thereof, to include pain. Thus, to the extent this is the pain to which he is referring, awarding the Veteran an extraschedular rating based thereon would amount to pyramiding and is not permitted. 38 C.F.R. § 4.14. The Board acknowledges all other written statements the representative has submitted in this case, but they include boilerplate language generally referring to inadequate examinations, reasons and bases, De Luca failure, the Veteran's lay statements, discounted favorable evidence, sympathetic development, implied denial of claims, negative evidence and mischaracterization of claims, due process, and medical treatises, rather than anything specific to the Veteran’s claim. Based on the previously noted facts, the criteria for entitlement to a compensable rating for ITP have not been met. The evidence in this case is not in relative equipoise; therefore, the Board may not resolve reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for OSA, including as secondary to ITP The Veteran seeks service connection for OSA on a direct basis, as initially manifesting during or aggravated by service, or a secondary basis as related to or aggravated by his service-connected ITP. The Veteran asserts that he has OSA as he awakens three to four times nightly and feels tired during the days. He contends this condition had its onset in service due to Prednisone he used to treat his ITP. He claims that steroid use can cause sleep problems. In January 2020, the Veteran underwent a VA sleep apnea examination, during which the examiner offered an opinion on the etiology of the Veteran’s OSA, but in a December 2020 written statement, the Veteran’s representative alleges that the examination was inadequate. The VA examiner confirmed that the medications the Veteran was taking in service for his ITP can cause sleeping difficulty but found that that they do not cause OSA. The representative interprets the VA examiner’s confirmation as a concession that the medication disrupted the Veteran’s sleep and then cites a medical article indicating that such disruption can cause an obstruction leading to OSA. A medical opinion addressing this matter is needed. Entitlement to service connection for a foot disability, to include plantar fasciitis, including as secondary to ITP and/or undifferentiated systemic rheumatic disease The Veteran seeks service connection for a foot disability on the basis that it was aggravated by service, or initially manifested during service, or was caused or aggravated by his service-connected ITP and/or undifferentiated systemic rheumatic disease. In April 2019, the Board remanded this claim to the AOJ for a VA foot examination, but the report of this examination is inadequate to decide this claim. Although it includes an opinion addressing whether any foot disability, to include plantar fasciitis, is aggravated by the Veteran’s ITP, it does not include an opinion addressing whether such disability is aggravated by the Veteran’s service-connected undifferentiated systemic rheumatic disease. A VA addendum opinion is therefore needed. Entitlement to an effective date prior to January 11, 2016 for the assignment of SMC under 38 U.S.C. § 1114(s) As explained in the April 2019 Remand, the claim of entitlement to an effective date prior to January 11, 2016 for the assignment of SMC under 38 U.S.C. § 1114(s) is inextricably intertwined with the previously noted claims. As such, the Board will defer consideration on this matter until all requested action is taken. The matters are REMANDED for the following action: 1. Obtain an addendum opinion on the etiology of the Veteran’s OSA. The examiner should review all pertinent documents of record, including: the January 2020 VA sleep apnea examination report, in which the examiner noted that the medications the Veteran took in service can cause sleeping difficulties but not OSA; the representative’s December 2020 written statement alleging that those difficulties included sleep disruption that caused an obstruction that led to the OSA; and the article he cites in that statement in support of his assertion. Based on this review, and referencing the article the Veteran submitted, the examiner should opine whether the sleeping difficulties to which the examiner referred in the January 2020 report included sleep disruption, and whether such disruption in turn caused an obstruction that led to the development of the Veteran’s OSA. The examiner should provide rationale for the opinion. 2. Obtain an addendum opinion on the etiology of the Veteran’s foot disabilities. The examiner should review all pertinent documents of record, including post-service treatment records showing a 2016 diagnosis of undifferentiated connective tissue disorder, foot complaints beginning in 2017, and diagnoses of plantar fasciitis, pes planus, chronic foot pain, a short leg requiring a heel lift, a possible fracture of the os peroneum and a bone bruise of the cuboid. (Continued on the next page)   Based on this review, the examiner should opine whether any foot disability with which the Veteran has been diagnosed during the appeal is at least as likely as not caused or aggravated by his service-connected undifferentiated systemic rheumatic disease. The examiner should provide rationale for the opinion. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N. 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.