Citation Nr: 22014474 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-47 107 DATE: March 14, 2022 ORDER Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected beta thalassemia with secondary anemia is denied. Entitlement to an initial 10 percent disability rating for the Veteran's vasovagal syncope with atypical chest pain is granted. FINDINGS OF FACT 1. For the period on appeal the Veteran's beta thalassemia with secondary anemia most closely approximated the criteria for a 10 percent disability rating. 2. The Veteran has a confirmed diagnosis of vasovagal syncope with a history of near syncopal and syncopal episodes. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected beta thalassemia with secondary anemia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.21, 4.7, 4.117 Diagnostic Codes 7700, 7720. 2. The criteria for establishing entitlement to an initial 10 percent disability rating for the Veteran's vasovagal syncope with atypical chest pain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.121, 4.124a, Diagnostic Codes 8199-8108, 8911. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 2010 to February 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified at a virtual hearing before the undersigned Veteran's Law Judge (VLJ). A transcript of the hearing is of record. When this case was last before the Board in May 2021 it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with a VA examination to address the current severity of his claimed disabilities and to obtain updated VA treatment records. All relevant actions were undertaken. As such, the Board finds that the AOJ substantially complied with the directives in the May 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Beta Thalassemia with Secondary AnemiaLegal Criteria When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27. In this regard, Beta Thalassemia with secondary anemia is a disorder of the hematologic system, and the RO has rated the Veteran's disability under Diagnostic Code 7799-7700, analogous to anemia. At the time that the Veteran filed his claim, an iron deficiency anemia disability was evaluated under Diagnostic Code (DC) 7700. On October 29, 2018, the Department of Veterans Affairs 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. 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 diagnostic codes (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). In the August 2014 rating decision on appeal, the Veteran's service-connected anemia was rated as 10 percent disabling under DC 7799-7700. The Veteran was awarded a 10 percent disability rating for lightheadedness and based on a hemoglobin reading of 10gm/100ml. 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; 69 Fed. Reg. 25,179 (2003). If application of an amended regulation has a retroactive effect, then the regulation cannot be applied. Rodriguez v. Peake, 511 F.3d 1147, 1153 (Fed. Cir. 2008). But 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). Because the Veteran's claim was pending at the time that the portion of the VA Schedule for Rating Disabilities that addresses the hemic and lymphatic systems was changed, the Board must address whether a higher disability rating is warranted under both the old and the new diagnostic criteria. The Board will select the diagnostic criteria which is most favorable to the Veteran. DC 7700 (the criteria in effect prior to December 9, 2018) provided that a zero percent rating was warranted for anemia when the hemoglobin level was 10gm/100ml or less and the condition was asymptomatic. A 10 percent rating is warranted for a hemoglobin level of 10gm/100 ml or less with findings such as weakness, easy fatigability, or headaches. A 30 percent rating is warranted for a hemoglobin level of 8 gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath. A 70 percent rating is 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). Lastly, a 100 percent rating is warranted for a hemoglobin level of 5 gm/100 ml or less, with findings such as high output congestive heart failure or dyspnea at rest. 38 C.F.R. § 4.117 (2018), Code 7700. Pursuant to the revised rating criteria: under 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 rating. A 30 percent evaluation is warranted if the iron deficiency anemia requires intravenous iron infusions 4 or more times per 12-month period. A noncompensable rating is provided for asymptomatic iron deficiency anemia or requiring treatment only by dietary modification. 38 C.F.R. § 4.117, DC 7720. The other revised Diagnostic Codes for anemia 7721, 7722, and 7723 will not be addressed, as the Veteran does not have a folic acid deficiency (7721), pernicious anemia and/or B12 deficiency anemia (7722), or acquired hemolytic anemia. Additionally, the Board notes that the codes in effect prior to the revision are more favorable to the Veteran, as such the Board will focus on the old diagnostic codes. Analysis The Veteran seeks entitlement to a disability rating in excess of 10 percent for his service-connected beta thalassemia with secondary anemia. For the reasons explained below, the Veteran's claim is denied. The Veteran's service treatment records (STRs) noted that he was diagnosed with anemia related to his beta thalassemia. The lowest hemoglobin values in his STRs were around 11gm/100ml. The Board notes that on average his hemoglobin levels did not significantly differ from the below cited VA examinations. The Veteran's VA treatment records do contain laboratory blood work results, however, none of the results differ significantly from the below cited VA examinations. The Veteran was initially provided with a December 2013 VA Hematologic and Lymphatic Conditions examination. The examiner diagnosed the Veteran with beta thalassemia and noted that the Veteran experienced anemia caused by this condition. The examiner noted that the Veteran experienced headaches and syncopal episodes, though the examiner was unable to determine if the syncopal episodes were from his beta thalassemia or from his heat stroke. Laboratory testing noted the Veteran's hemoglobin levels to be 12.8gm/100ml. The Veteran provided a March 2015 lay statement wherein he stated he believed he was entitled to a higher disability rating for his beta thalassemia due to his symptoms of heat stroke and episodes of syncope. (The Board notes that the Veteran's syncope and residuals of heat stroke are being compensated under other diagnostic codes and that while separate diagnostic codes identify the various disabilities and the criteria for specific ratings, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.) The Veteran was next provided with a June 2017 VA Hematologic Conditions examination. The examiner continued the Veteran's diagnosis of anemia and noted that medication was not required to control the Veteran's condition. Further the examiner noted that the Veteran had not undergone any treatment and was instead doing "watchful waiting." The examiner noted that the Veteran's anemia caused weakness, easy fatiguability, headaches, dyspnea on mild exertion, syncope, and nausea. Laboratory testing noted the Veteran's hemoglobin levels were 13 gm/100ml. The examiner noted that the Veteran did not require blood transfusions. In response to the Board's May 2021 Remand, the Veteran was provided with an August 2021 VA Hematologic Conditions examination. The examiner confirmed the Veteran's diagnosis of beta thalassemia with secondary anemia and noted that the Veteran's condition has stayed the same since its onset. The examiner noted that the Veteran is not using any medication to treat his condition, no treatment has been undertaken, and that the Veteran is "watchful waiting." Laboratory testing noted the Veteran's hemoglobin levels were 13 gm/100ml. The examiner stated that the Veteran would have difficulty with pushing, pulling, lifting, carrying and other strenuous activities as well as a safety concern in certain work environments due to chronic fatigue and daytime sleepiness related to this condition. Based on a review of the evidence, at no point during the period on appeal was the Veteran's hemoglobin level 8gm/100 ml or less. While the Veteran experienced symptoms such as easy fatiguability, lightheadedness, headaches, and dyspnea on exertion his overall disability picture did not rise to the level of a 30 percent rating under DC 7700. As such, a rating in excess of 10 percent under the older rating criteria is not warranted. Additionally, a rating in excess of 10 percent is not warranted under the new rating criteria, Diagnostic Code 7720, which was effective December 9, 2018. At no point during this period was the Veteran's beta thalassemia anemia shown to have required intravenous iron infusions 4 or more times per 12-month period. The Board observes that the VA examiners reported that the Veteran has never had any blood transfusions. The Board has considered the Veteran's lay statements concerning his symptoms. The Veteran is competent to report symptoms such as fatigue and dizziness because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence, with respect to the severity of this Veteran's beta thalassemia disability includes an assessment of the Veteran's hemoglobin levels and a determination whether the Veteran's disability requires intravenous iron infusions, fully describing the nature and extent of the Veteran's disability. This competent medical evidence has been provided by the medical personnel who have diagnosed and examined his beta thalassemia with secondary anemia during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) with consideration of the Veteran's symptoms, directly address the criteria under which such distinctively diagnosed disabilities are evaluated. Here, the Board finds that for the period on appeal the Veteran's beta thalassemia was not manifested by hemoglobin levels of 8gm/100ml or less; and the Veteran did not require intravenous iron infusions 4 or more times per 12- month period. Therefore, a rating in excess of 10 percent for the period on appeal is denied. As the evidence is persuasively against a higher rating, the benefit of the doubt rule is not for application. Vasovagal SyncopeLegal Criteria When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. § 4.20. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. 38 C.F.R. § 4.27. In this regard, vasovagal syncope is a disorder of the neurological system or a convulsive disorder, and the RO has rated the Veteran's vasovagal syncope as noncompensable, or zero percent, disabling since July 28, 2014, under Diagnostic Code 8199-8108, analogous to narcolepsy. 38 C.F.R. § 4.124a, Diagnostic Code 8199-8108. Narcolepsy, in turn, is rated as epilepsy, petit mal. Id. Petit mal epilepsy is rated under the general rating formula for minor seizures. 38 C.F.R. § 4.124a, Diagnostic Code 8911. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head ("pure" petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). Id. Note (2). In comparison, a major seizure is characterized by the generalized tonic-clonic convulsion with unconsciousness and is rated under the general rating formula for major seizures. See id. Note (1); see also § 4.124a, Diagnostic Code 9810 (rating criteria for grand mal epilepsy). Under the General Rating Formula for Major and Minor Epileptic Seizures, a 20 percent disability rating is warranted for "[a]t least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months." A 40 percent disability rating is warranted for "[a]t least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly." A 60 percent disability rating is warranted for "[a]veraging at least 1 major seizure in 4 months over the last year; or 9-10 minor seizures per week." An 80 percent disability rating is warranted for "[a]veraging at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly." A 100 percent disability rating is warranted for "[a]veraging at least 1 major seizure per month over the last year." Note (2) note accompanying the General Rating Formula for Major and Minor Epileptic Seizures states that "[i]n the presence of major and minor seizures, rate the predominating type." As to the frequency of epilepsy, and by analogy vasovagal syncope episodes, competent, consistent lay testimony emphasizing convulsive and immediate post-convulsive characteristics may be accepted. The frequency of seizures should be ascertained under the ordinary conditions of life (while not hospitalized). 38 C.F.R. § 4.121. Analysis The Veteran's service treatment records (STRs) document that he experienced syncopal episodes while in service. Further, the Board notes that the Veteran was provided with a Physical Evaluation Board (PEB) examination due to his in-service heat stroke with related syncopal episodes. The Veteran was eventually medically discharged due to his incurred disability. The Veteran was afforded a VA examination in December 2013. He was noted to have a history of vasovagal syncope and reported having syncopal episodes with extreme exercise. In a March 2015 correspondence the Veteran reported that he continues to experience light headedness, dizziness, and fatigue brought about by physical activity, though he is better able to pace himself. In a June 2017 VA Narcolepsy examination, the Veteran reported that he had learned how to control his situation with self-monitoring, staying hydrated, and not overdoing it. The examiner noted that the Veteran does not require continuous medication and did not have any other pertinent findings, complications, conditions, signs, or symptoms related to his disability. In a June 2017 correspondence the Veteran reported that while in service he experienced several syncopal episodes which he related to his heat stroke. He noted that after separation he has attempted to work through his condition by quitting tobacco smoking, hydrating, and using work/break schedules. The Veteran noted that if he overdoes it in the sun, he can feel fatigue, dizziness, and shortness of breath. The Veteran's VA treatment records during this period document that he denied experiencing any syncopal episodes since 2013. See e.g. June 2017 Primary care note, July 2017 Sleep Disorder Consult, and August 2017 Progress note. In a February 2021 VA Narcolepsy examination the examiner noted that the Veteran does not have a diagnosis of narcolepsy, does not take any medication, and has had no major or minor seizures. However, the examiner does not discuss the Veteran's vasovagal syncope. During the Veteran's May 2021 Board hearing the Veteran testified that he went to the ER during the week prior to his Board hearing because he was dizzy and lightheaded. Additionally, the Veteran noted that he was wearing a Holter monitor during the hearing that was specifically to look at the severity of his vasovagal syncope condition. The Veteran's VA treatment records during this period note that he began to experience syncopal and near syncopal episodes. The results of the Veteran's Holter monitor noted that he was monitored for 11-days and that he had 34 triggered events of dizziness. Further, the Board notes a June 2021 Sleep clinic follow up which noted that the Veteran has syncope at times, and a June 2021 Allergy Clinic Physician note which indicated that the Veteran experienced dizziness, near syncope, and abnormal Holter monitor results. An August 2021 VA Heart Conditions examination noted that the Veteran's vasovagal syncope had worsened. Further the examiner noted that the Veteran had a METs level of 5-7 with symptoms of dyspnea, fatigue, angina, and dizziness. An October 2021 VA Narcolepsy examination indicated that the Veteran still does not have a narcolepsy diagnosis, but his vasovagal syncope has worsened. The examiner noted the Veteran experiences excessive daytime sleepiness and sleep attacks 2-3 times per day. The examiner noted that the Veteran had 0-1 cataplectic episodes within the past 6 months and noted that the Veteran did not have any major or minor seizures associated with his disability. In a November 2021 correspondence the Veteran reported that in May 2021 he wore a Holter monitor for his vasovagal syncope and that the records show he had 34 episodes where he exhibited symptoms. The Veteran continued that he experiences these symptoms on a daily basis which makes accomplishing manual labor difficult. The Board has considered the Veteran's lay statements concerning his symptoms. The Veteran is competent to report symptoms such as fatigue and dizziness because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence, with respect to the severity of this Veteran's vasovagal syncope disability includes an assessment of the Veteran's disability, and whether he has undergone any major or minor seizures. This competent medical evidence has been provided by the medical personnel who have diagnosed and examined his vasovagal syncope during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) with consideration of the Veteran's symptoms, directly address the criteria under which such distinctively diagnosed disabilities are evaluated. In this case, the medical evidence of record persuasively establishes a confirmed diagnosis of vasovagal syncope with a history of syncopal episodes witnessed in service. Therefore, the Veteran is entitled to an initial 10 percent rating, but no higher, for service-connected vasovagal syncope, rated by analogy to petit mal epilepsy. A higher, 20 percent rating is not warranted for this period on appeal because the evidence does not demonstrate that he had the equivalent of 1 major seizure in the last 2 years or two minor seizures in a 6-month period. Indeed, until around May 2021, the medical evidence demonstrates that the Veteran actively denied experiencing any syncopal episodes since 2013. As such, the Board concludes that the criteria (by analogy) for a 10 percent disability rating is warranted for the Veteran's vasovagal syncope for the period on appeal have been met, and to this extent, the Veteran's claim is granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8911. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.