Citation Nr: 21040185 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-46 182 DATE: July 2, 2021 ORDER Prior to December 9, 2018, a compensable disability rating for anemia is denied. From December 9, 2018, a 10 percent rating, but no higher, for anemia is granted. FINDINGS OF FACT 1. Prior to December 9, 2018, the criteria for a compensable disability rating for anemia have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.117, Diagnostic Code 7700 (2018). 2. From December 9, 2018, the criteria for a disability rating of 10 percent, and no higher, for the service-connected anemia have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.117, Diagnostic Code 7720 (2020). CONCLUSIONS OF LAW 1. For the period prior to December 9, 2018, the Veteran's anemia was not manifested by hemoglobin levels of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. 2. For the period from December 9, 2018, the Veteran's anemia has required continuous treatment with oral supplementation. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded the claim for issuance of a supplementary statement of the case (SSOC). An SSOC was issued in June 2020, and the claim has been returned to the Board for adjudication. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. Entitlement to a compensable evaluation for anemia At the time the Veteran filed the claim, iron deficiency anemia disabilities were evaluated under Diagnostic Code (DC) 7700. On October 29, 2018, VA issued a final rule revising 38 C.F.R. § 4.117, the portion of the VA Schedule for Rating Disabilities that addresses the hemic and lymphatic systems, effective December 9, 2018. See 83 FR 54250, 54254 (Oct. 29, 2018). The final rule updated medical terminology, added certain hematologic diseases, and provided detailed and updated criteria for evaluating conditions pertaining to the hematologic and lymphatic systems. The rule removed DC 7700 (Anemia, hypochromic-microcytic and megaloblastic, such as iron-deficiency and pernicious anemia) and added separate DCs (7720-7723) for the four major types of anemia that are neither hereditary nor secondary (addressed under the diagnostic code for the causative condition). Id. When a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. See VAOPGCPREC 7-03. Even if the amended versions are more favorable, the amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation may be applied. See VAOPGCPREC 3-00; 65 Fed. Reg. 33,422 (2000); see also Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Under the rating criteria in effect prior to December 9, 2018, DC 7700 provided that a 0 percent rating was warranted for anemia when the hemoglobin level was 10gm/100ml or less and the condition was asymptomatic. A 10 percent rating was warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating was warranted for a hemoglobin level of 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating was warranted for a hemoglobin level of 7 gm/100 ml 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). A 100 percent rating was warranted for a hemoglobin level of 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest, is rated 100 percent disabling. A Note to DC 7700 provided that complications of pernicious anemia, such as dementia or peripheral neuropathy, were to be rated separately. 38 C.F.R. § 4.117 (2018). The Veteran's service-connected anemia is an iron deficiency anemia. Under the rating criteria in effect from December 8, 2018, iron deficiency anemias are rated under DC 7720. Pursuant to DC 7720, iron deficiency anemia requiring intravenous iron infusions at least 1 time, but less than 4 times, per 12-month period, or requiring continuous treatment with oral supplementation, warrants a 10 percent disability rating. A 30 percent disability rating is warranted if the iron deficiency anemia requires intravenous iron infusions 4 or more times per 12-month period. 38 C.F.R. § 4.117 (2020). The Veteran had a VA examination in July 2015 at which it was noted that her hemoglobin had been stable since March 2014. There were not findings, signs, or symptoms due to a hematologic or lymphatic disorder or due to treatment for a hematologic or lymphatic disorder. The Veteran did not have polycythemia vera or sickle cell anemia. Laboratory testing showed hemoglobin of 13.6gm/100ml. The Veteran was treated with iron as needed. At March 2015 VA treatment the hemoglobin was 13.6gm/100ml, and at May 2018 VA treatment it was 13.1gm/100ml. VA treatment notes have stated several times, including in June 2018, that the Veteran had been administered iron intravenously twice before. The hemoglobin was 11.7 gm/100ml at August 2019 VA treatment, and in September 2019 it was 9.6gm/100ml and 9.8gm/100ml. January 2020 VA hematology treatment records state that as late as December 2019, and that the Veteran had been asymptomatic. In January 2020 the hemoglobin was 12.2gm/100ml. Under the rating criteria in effect at the time of the claim, the Veteran does not qualify for a 10 percent rating at any time during the appeals period. Prior to September 2019, the evidence demonstrates hemoglobin levels in excess of 10gm/100ml. In September 2019, the hemoglobin was below 10gm/100ml. However, the record does not show that the Veteran had weakness, easy fatigability, or headaches, as required for a 10 percent rating. See 38 C.F.R. § 4.117, DC 7700 (2018). Furthermore, in January 2020 the hemoglobin was 12.2gm/100ml. Therefore, the Veteran does not qualify for a compensable rating under the rating criteria in effect at the time of the claim because the Veteran has not had hemoglobin 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. See id. Review of the record indicates that during the course of this appeal the Veteran endorsed that her anemia manifested as symptoms including lightheadedness, which is included in the 30 percent rating criteria under Diagnostic Code 7700. However, the criteria specifically include the conjunctive "with," so that these symptoms must be present in conjunction with hemoglobin levels of 8.0gm/100ml or less in order to meet the criteria for the 30 percent, or higher, schedular rating under DC 7700. See Melson v. Derwinski, 1 Vet. App. 334 (1991); compare Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). Regarding the rating criteria in effect from December 9, 2018, the evidence of record reflects that the Veteran's anemia has required continuous treatment with oral supplementation. The July 2015 VA examiner endorsed continuous medication for anemia and stated that the Veteran was taking iron supplements as needed. The evidence of record does not reflect that the anemia has required intravenous iron infusions more than two times total. Therefore, the Veteran qualifies for a 10 percent rating under the new rating criteria because she has been continuously treated with oral supplementation. See 38 C.F.R. § 4.117, DC 7720 (2020). The Veteran does not qualify for a 30 percent rating because she has not required intravenous iron infusions 4 or more times per 12-month period. See id. A 10 percent rating is granted from December 9, 2018, the effective date of the new rating criteria. See VAOPGCPREC 7-03. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, however, the record does not reflect she is unemployable due to her service-connected anemia. While the record shows that there may be some interference with some job-related activities due to the service-connected disability, there is no cogent evidence of unemployability, and thus consideration of a TDIU is not warranted. Scott Shoreman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.