Citation Nr: 21027190 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-28 464A DATE: May 4, 2021 ORDER 1. Entitlement to a 70 percent, but not higher, rating for idiopathic thrombocytopenic purpura (ITP) is granted, subject to regulations governing payment of monetary awards. 2. Entitlement to service connection for bilateral hearing loss is denied. REMANDED 3. Entitlement to service connection for a neck disability is remanded. FINDINGS OF FACT 1. The Veteran's ITP is reasonably shown to have been manifested by a platelet count between 20,000 and 70,000, not requiring treatment, without bleeding; a platelet count less than 20,000 with active bleeding, or chemotherapy for chronic refractory thrombocytopenia, or a platelet count 30, 000 or below despite treatment is not shown. 2. The Veteran is not shown to have (or during the pendency of this claim to have had) a hearing loss disability of either ear. CONCLUSIONS OF LAW 1. A 70 percent rating for ITP is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. 3.102, 4.3, 4.7, 4.117 Diagnostic Code (Code) 7705. 2. Service connection for bilateral hearing loss is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1998 to July 1999 and from September 2001 to June 2003 and also had service in Air National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal of June 2011 and July 2014 Department of Veterans Affairs (VA) rating decisions. In December 2020, a videoconference hearing was held before the undersigned; a transcript is in the record. Increased Rating 1. A 70 percent rating for ITP is granted. Disability evaluations are determined by the application of a schedule of rating, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Where the appeal is from the initial rating decision assigned with an award of service connection, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be assigned, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ITP is rated under Code 7705. During the pendency of the appeal, the criteria for rating ITP under 38 C.F.R. § 4.117, Code 7705 were revised effective December 9, 2018. As the period under consideration here is from December 28, 2009 (the effective date of grant of service connection for ITP) to the present, the Veteran is entitled to a rating under either the prior or the revised (from their effective dates, if more favorable) criteria. See VAGCPREC 3-2000. Under the pre-December 9, 2018 Code 7705, a 0 percent rating is warranted for 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. A 100 percent rating is warranted for a platelet count of less than 20,000 with active bleeding, requiring treatment with medication and transfusions. Under the post-December 9, 2018 Code 7705, a 0 percent rating is warranted for platelet count above 50,000 and asymptomatic; or for immune thrombocytopenia in remission. A 10 percent rating is warranted for platelet count higher than 30,000 but not higher than 50,000, not requiring treatment. A 70 percent rating is warranted for requiring 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 percent rating is warranted when requiring chemotherapy for chronic refractory thrombocytopenia; or with a platelet count of 30,000 or below despite treatment. The July 2014 rating decision awarded service connection for ITP, rated 30 percent effective December 28, 2009. November 2004 and May 2005 private laboratory studies showed platelet counts of 104,000 and 136,000, respectively. A June 2013 private treatment record notes a study showed a platelet count of 67,000. It was noted that the platelet count remained low but stable, with no indication for treatment at the time. A July 2013 private study report (received September 2014) showed a platelet count of 65,000. A February 19, 2014 private laboratory study showed a platelet count of 67,000. On May 2014 VA examination, the Veteran reported a low platelet count was found in 2002 while he was having elective surgery, and ITP was diagnosed. The provider noted continuous medication was not required to control a hematologic condition and that the Veteran was not receiving treatment for a hematologic condition. The examiner noted the Veteran has thrombocytopenia and opined he has a stable platelet count between 70,000 and 100,000. Laboratory studies (dated February 17, 2014) showed a platelet count of 67,000. In a June 2014 addendum, the May 2014 examiner explained he opined that the Veteran had a stable platelet count between 70,000 and 100,000 because a significant majority of the platelet counts were in that range, there was only one platelet count below 70,000, and a few were above 100,000. The examiner noted that one platelet count minimally below the 70,000 level does not establish a stable count that is less than 70,000. An August 4, 2020 private laboratory study showed a platelet count of 57,000. An August 17, 2020 private laboratory study showed a platelet count of 53,000. An August 31, 2020 private laboratory study showed a platelet count of 70,000. On September 2020 VA hematologic conditions examination, the Veteran reported his platelet count crashed in August and required steroids and other injections for some time which brought his platelet count of 100,000. The Veteran reported symptoms of low platelet counts included fatigue, nasal bleeding, and dark rings under his eyes. ITP was diagnosed. The examiner noted the Veteran was receiving steroid injections (since August 2020) to treat his hematologic condition. Laboratory studies (dated August 4, 2020) show a platelet count of 57,000. The examiner opined the ITP impacts the Veteran's ability to work, noting he has occasional symptoms of increasing fatigue, and that his work position should allow for breaks to allow for rest every 2 to 4 hours during the episodes of fatigue. At the December 2020 hearing, the Veteran waived initial consideration of evidence associated with the file following the May 2017 statement of the case. He testified that he is receiving treatment for ITP, to include testosterone replacement therapy, high dose corticosteroids, and injections. He testified he was hospitalized for the testosterone replacement therapy, which got his platelet count to just under 100,000. He testified he receives private treatment from the Norton Cancer Institute and does not receive VA treatment. He testified the blood work 2 to 3 months ago found his lowest his platelet count (approximately 55,000). The critical questions before the Board are: (1) whether the next higher (70 percent) rating for ITP is warranted for any period under the pre-December 2018 amendment rating criteria, and (2) whether a rating under the December 2018 revisions (from there effective date) would be more favorable. On review of the record, the Board finds that the Veteran's ITP warrants a 70 percent, but no higher, rating throughout under the pre-December 2018 rating criteria (which are more favorable with respect to the 70 percent rating). Laboratory studies on 6 occasions showed stable platelet counts between 20,000 and 70,000. While a May 2014/June 2014 examiner opined that the Veteran's stable platelet count was in the range of 70,000 to 100,000, this opinion was based on an incomplete factual record. Notably, the examiner noted that only one laboratory study showed a platelet count below 70,000; however, VA received additional private treatment records from 2013 showing platelet counts of 65,000 and 67,000. See June and July 2013 private treatment records. Moreover, private laboratory studies in 2020 showed platelet counts ranging between 53,000 and 70,000. See August 2020 laboratory testing. At the December 2020 hearing, the Veteran confirmed that his platelet count has not dropped below 50,000. He testified he underwent testosterone replacement therapy to increase his platelet count and that he was subsequently hospitalized for such treatment (there is nothing in the record suggesting such report is inaccurate); laboratory testing found platelet counts between 53,000 and 70,000. The Board notes he would not be entitled to an increased (to 70 percent) rating under the new criteria for Code 7705 (which requires immunosuppressive therapy or a platelet count higher than 30,000 but no higher than 50,000). The Veteran receives a more favorable rating under the pre-December 2018 rating criteria and rating under the revised criteria would not benefit the Veteran. Under the pre-December 2018 rating criteria, the severity of the Veteran's ITP more closely approximates a 70 percent. Accordingly, a 70 percent rating under the pre-December 2018 rating criteria is warranted. A rating in excess of 70 percent (i.e., 100 percent) is not warranted under the pre-December 2018 criteria, as the evidence does not show a platelet count of less than 20,000 with active bleeding, requiring treatment with medication and transfusions. Likewise under the effective December 9, 2018 revised criteria, a rating in excess of 70 percent is still not warranted as the evidence, to include per the Veteran's December 2020 hearing testimony, does not show he requires chemotherapy for chronic refractory thrombocytopenia has or a platelet count of 30,000 or below despite treatment. Accordingly, a schedular rating for ITP in excess of 70 percent under either the pre-December 9, 2018, or the revised effective from that date, rating criteria is not warranted. Service Connection 2. Entitlement to service connection for bilateral hearing loss is denied. Service connection may be granted for a disability resulting from a disease or injury incurred or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104, F.3d 1328 (Fed. Cir. 1997). For VA compensation purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of those frequencies are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Certain chronic diseases (to include sensorineural hearing loss (SNHL) as an organic disease of the nervous system) may be presumed to be service-connected if manifested to a compensable degree within a specified period following separation from service (one year for organic diseases of the nervous system). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert, 1 Vet. App. at 55. The Veteran's DD Form 214 shows that his military occupational specialty (MOS) was Security Forces journeyman. It is not in dispute that in his MOS he was exposed to significant levels of noise during his periods of active duty service. What remains necessary to substantiate this claim is competent evidence that he a current hearing loss disability (as defined in 38 C.F.R. § 3.385), and if so, that it is etiologically related to his active duty service/exposure to noise therein. On July 2010 VA audiological examination audiometry, puretone thresholds, in decibels, were: HERTZ 500 1000 2000 3000 4000 Right 15 15 15 20 10 Left 15 15 10 10 15 Speech audiometry revealed speech recognition ability of 100 percent in each ear. At the December 2020 hearing, the Veteran testified he underwent a hearing test by a private ENT clinic located on Daisy lane and was told there was hearing loss in the left ear. He testified he has not submitted the hearing test and was given a 90-day period to submit such evidence. After the hearing, the Veteran submitted a private audiogram, in chart form, from an ENT clinic located on Daisy Lane dated March 10, 2020. The chart shows no puretone threshold in the frequencies of 500 to 4000 hertz level exceeded 20 decibels (the provider clearly drew a line at the 20 decibel level and all of the right or left ear symbols between 250 and 4000 hertz were either below or on the line). Speech audiometry revealed speech recognition ability of 100 percent in each ear; the word list used was not identified. Tinnitus was diagnosed; a hearing loss disability was not. The threshold matter that must be addressed here (as in any claim seeking service connection) is whether the Veteran has the disability for which service connection is sought, i.e., a hearing loss disability in either (or both) ear(s). Because hearing loss disability is defined by regulation (38 C.F.R. §3.385), to satisfy the threshold requirement the Veteran must show that during the pendency of the instant claim he was found (by audiometry in accordance with 38 C.F.R. § 4.85) to have a hearing impairment that meets the § 3.385 definition. The evidence of record does not show that he has been found to have a hearing loss disability in either ear at any time during the pendency of the instant claim. 38 U.S.C. §§ 1110, 5107(b); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); 38 C.F.R. § 3.303(a), (d). Although the Veteran is competent to report a perception of difficulty hearing, he is a layperson, and because under governing regulation a hearing loss disability must be shown by specified testing by a state-licensed audiologist, he is not competent to establish solely by his own opinion that he has a hearing loss disability. Although he reported a private ENT clinic found hearing loss in his left ear, and submitted an audiometry report from the audiology clinic in question, that report does not show he has a hearing loss disability in either ear. As a hearing loss disability is not shown, he has not presented a valid claim of service connection for such disability. See Brammer v. Derwinski, 3 Vet. App. 233 (1992). REASONS FOR REMAND 3. Entitlement to service connection for a neck disability. The Veteran alleges that he has a neck disability due to a motor vehicle accident (MVA) that occurred while he was deployed to Spain in 2003. The service treatment records (STRs) associated with the record do not contain any complaints or treatment relating to a MVA. In an April 2003 report of medical assessment, the Veteran reported he did not suffer any injury or illness while on active duty. While his DD Form 214 indicates he had 3 months and 7 days of foreign service during the period from September 2001 to June 2003, the record does not show when he was stationed in Spain. The current record does not include his complete service personnel records (SPRs), which should show if and when he served in Spain and potentially (via an incident report) confirm his being in a MVA during such period. In a February 2021 statement, the Veteran reported his 4-door passenger car was t-boned by a heavy-duty pickup truck while he was patrolling the base in Spain. He could not recall the date of the MVA. He reported his car was totaled and the truck sustained heavy front-end damage. He stated his back and neck were stiff and sore following the incident, and that he did not then seek treatment for injuries sustained. He reported he sought chiropractic treatment upon return from deployment. A January 2004 (approximately 7 months following his separation from active duty) private treatment record shows the Veteran sought chiropractic treatment for pain starting in his legs and running up through his back, shoulders, and neck. He reported his current occupation was police officer; he did not know when the condition started; it was on and off for years; and that he was in a MVA over 5 years prior. Private treatment records (from Dr. M,) show he received chiropractic treatment for neck and low back pain from January 2004 to June 2007. An August 2015 private operative report notes a diagnosis of cervical spondylosis and chronic herniated disc. The Veteran reported a long history of chronic progressive posterior cervical pain and upper extremity radiculopathy. The provider noted conservative treatment failed and that the Veteran was brought in for anterior cervical discectomy and fusion. In a January 2021 statement in support of claim, the private provider reviewed a statement about the Veteran's alleged MVA and injuries from such during service, and opined that his cervical spine condition and surgical intervention were more likely than not related to the MVA/trauma the Veteran described. The opinion appears to be based essentially on the Veteran's self-reports. Notably, the Veteran alleges the MVA also caused his back injury; a February 2012 rating decision awarded service connection for his low back disability based on a chronic disease presumption rather than acknowledgement of injury in a MVA resulting such disability. The veteran has not been afforded a VA examination to determine the etiology of his neck disability. Considering the state of the medical evidence upon further development, an examination to secure a medical opinion in this matter may be necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following: 1. Arrange for exhaustive development to locate, and secure for the record, the Veteran's complete STRs and SPRs that would confirm when and where he served deployed to Spain, and confirm he was involved in a MVA such as he describes while he was stationed in Spain (during his active duty service from September 2001 to June 2003). The search should encompass any record storage facilities where National Guard records for the Veteran's unit may have been sent for storage/retired. Confirmation of the incident he describes should be sought from not only his own service personnel records (from both active duty (Federalized) and non-Federalized National Guard service, but also from unit records of the unit in which he was serving when the incident occurred and records (e.g., incident reports, property damage reports) from the base where he was stationed in Spain. He must assist in this matter by providing all identifying information needed for the search to be conducted. If any records sought cannot be located, it should be so noted in the record, and the scope of the search should be described. 2. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for his neck since service (records of which are not already in the record) and to provide authorizations for VA to obtain complete records of any such private evaluations or treatment. He should specifically be asked to provide authorizations for VA to obtain complete records from his primary care provider, Dr. V., who referred him for treatment and from Dr. M., as well as a copy of his police entrance examination report. Secure for the record complete clinical records of the evaluations and treatment from all providers identified for whom he provides authorizations (if a provider is shown in the record, but he does not submit an authorization to obtain records from such provider, he must be remined that such is needed). If any private records identified are not received pursuant to the AOJ's request, he should be so notified, and advised that ultimately, it is his responsibility to ensure that private medical records are received. 3. Then, arrange for an orthopedic examination of the Veteran to determine the nature and likely etiology of his current neck disability. The Veteran's claims file (specifically including the SPRs, and any treatment records received pursuant to the request above, the treatment records already in the file which reflect complaints of and treatment for neck pain 7 months after separation from service (and noting a 5 year history of similar complaints), the lay statements by the Veteran, and the statement by the Veteran's private physician) must be reviewed by the examiner. The consulting provider should provide a clarifying medical opinion that responds to the following: (a.) Identify (by diagnosis) each neck disability entity found on examination or shown by the record during the pendency of this claim. (b.) Identify the likely etiology for each neck disability entity diagnosed. Specifically, is it at least as likely as not (a 50% or greater probability) that it is etiologically related to the Veteran's active duty service, to include as due to an alleged MVA he sustained therein (if such is confirmed to have occurred). (c.) If a diagnosed neck disability is found to be unrelated to service, identify the etiology for the disability that is considered to be more likely (and explain why that is so). All opinions must include rationale that cites to supporting factual data and medical principles. The rationale should include comment on (expression of agreement or disagreement with) any opinions already of record in this matter, and specifically the January 2021 statement by a private provider in support of his claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.