Citation Nr: 22014510 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-01 119 DATE: March 14, 2022 ORDER Entitlement to a 100 percent rating from April 18, 2013 for lupus-like autoimmune disease associated with herbicide exposure is granted, subject to the laws and regulations governing monetary awards. Entitlement to an effective date prior to November 15, 2016 for the grant of a 100 percent rating for lupus-like autoimmune disease associated with herbicide exposure has been rendered moot and is hereby dismissed. FINDING OF FACT Resolving all doubt in favor of the Veteran, his symptomology manifested with more than three exacerbations of disease per year lasting less than one week that produced severe impairment of health throughout the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating from April 18, 2013 for lupus-like autoimmune disease associated with herbicide exposure are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.88B, 4.96, 4.97, Diagnostic Code 6350. 2. The criteria for entitlement to an effective date prior to November 15, 2016 for the grant of a 100 percent rating for lupus-like autoimmune disease has been rendered moot and is hereby dismissed. 38 U.S.C. § 7104, 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served honorably in the United States Army from August 1968 to June 1971. These issues come before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The Board notes that in addition to the above mentioned claims, the Veteran has also perfected appeals pertaining to claims for entitlement to earlier effective dates and increased ratings for autoimmune disorder related skin condition, lupus type arthritis of the fingers and hand, seizures, anemia, and coronary artery disease. However, those issues will be the subject of a separate Board decision, as another VLJ took testimony on those issues. As such, the Board will not address those issues at this time. The Board noted that it previously remanded this matter to obtain private treatment records from 2013 to 2016 that would help the Board determine the severity of the Veteran's condition prior to November 15, 2016. However, these records were not sent to VA despite two requests to the private clinician for these records. In addition, VA sent correspondence to the Veteran in November 2021 requesting that he submit a VA Form 21-4142, General Release for Medical Provider Information to VA, to obtain the outstanding private treatment records. The Veteran submitted additional medical evidence from this provider; however, it was not from the time period requested by the Board. As such, the Board finds that there has been substantial compliance with its prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a compensable rating prior to November 15, 2016 for lupus-like autoimmune disease. 2. Entitlement to an effective date prior to November 15, 2016 for the grant of a 100 percent rating for lupus-like autoimmune disease. The Veteran contends that he is entitled to a compensable rating from April 18, 2013 to November 14, 2016 for his lupus-like autoimmune disease. In addition, he contends that he is entitled to an effective date earlier than November 15, 2016 for the grant of a 100 percent rating. By way of history, the Veteran filed his service connection claim in April 2013. An April 2014 rating decision granted service connection for lupus-like autoimmune disease and awarded a non-compensable rating effective April 18, 2013. The Veteran filed an increased rating claim in June 2014. A November 2014 rating decision continued the non-compensable rating. The Veteran timely filed a Notice of Disagreement in January 2015. A March 2017 rating decision increased the rating to 100 percent effective November 15, 2016 based on the Veteran's symptomology. The Veteran timely appealed that determination to the Board. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2018). An exception to this rule exists under 38 C.F.R. § 3.400 (o)(2). Under this provision, VA may assign an effective date for an increased rating, which includes TDIU, up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period. "An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one year ("look-back") period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans' Claims (the Court) since has extended this practice even to established ratings, not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." The Veteran's disability is rated under Diagnostic Code (DC) 6350. Under DC 6350, a 10 percent rating for the Veteran's lupus-like autoimmune disease requires exacerbations once or twice a year or symptomatic during the past two years. A 60 percent rating requires exacerbations lasting a week or more, two to three times per year. A 100 percent evaluation requires an acute manifestation of symptoms, with frequent exacerbations, producing severe impairment of health. 38 C.F.R. § 4.88b, DC 6350. VA treatment records in April 2002 and November 2007 noted a history of seizure disorder, but did not indicate the nature and severity of these seizures. In addition, a December 2008 VA treatment record noted the Veteran experiencing bilateral radiculopathy. A March 2010 private treatment record noted that the Veteran had very little difficulty with his lupus-like autoimmune disease over the last ten years. A September 2013 positive private nexus opinion was submitted by the Veteran. However, no report of the Veteran's current symptoms or complaints were noted. Furthermore, the clinician did not provide a history of the Veteran's symptoms prior to this opinion. A September 2014 VA examination report noted a history of lupus-like autoimmune disease with associated seizures, phlebitis, and splenectomy, but the Veteran was not taking any medication for this condition. In addition, the examiner noted that while the autoimmune disease was chronic, there were no exacerbations of this disease. Furthermore, the examiner noted no other signs or symptoms that were attributed to this disease. Finally, the examiner noted that the autoimmune disease did not impact his ability to work. Subsequent private treatment records and VA examinations reports from February 2015 through November 2016 noted the following symptoms: cataracts; more than three exacerbations of disease per year lasting less than one week that produced severe impairment of health; degenerative arthritis of the hand, finger and thumb joints, as week as bilateral feet; up to four minor seizures a week over the last six months with no evidence of major seizures over the last two years. These VA examinations seem to be the basis of the Veteran's 100 percent rating for his condition as of November 15, 2016. The Veteran testified at a Decision Review Officer (DRO) hearing in August 2016 that the September 2014 VA examination did not fully address any of the issues that he experienced at the time, such as arthritis, a splenectomy, seizures, chronic pain, and loss of lung function, to name a few. He also testified at an October 2017 DRO hearing that he had experienced seizures since 1980, that he experienced minor seizure up to four times per month, with grand mal seizures occurring at least twice a year. In addition, he testified that he experienced constant joint pain, eye issues, a splenectomy, tiredness, and fatigue that have been present since he filed his claim in April 2013. He also testified at his Board hearing that he experienced symptoms of his disability since April 2013 that have caused a severe impairment to his health. These symptoms include seizures (both minor and major), joint arthritis, dizziness, and tiredness, and that he has been taking medication for these conditions since 2013. In addition, the Veteran's wife testified as to her observations of the Veteran during this time period, including his experiencing seizures, dizziness, tiredness, and arthritic pain that resulted in her helping to button the Veteran's shirt at times. Their testimonies were found to be truthful and credible by the undersigned. Based on a review of the pertinent evidence of record and resolving all doubt in favor of the Veteran, the Board finds that the Veteran is entitled to a 100 percent rating as of April 18, 2013. The Veteran's credible testimony demonstrates to the Board that he has experienced more than three exacerbations of disease per year lasting less than one week that have produced severe impairment of health in the form of seizures, constant joint pain, loss of lung function, arthritis, dizziness, tiredness, and fatigue. The Board also finds that this symptomology has been present since the Veteran filed his claim on April 18, 2013. However, there is no evidence to demonstrate that the Veteran experienced this symptomology prior to April 18, 2013. As such, he is not entitled to an effective date of one year prior to the filing of his April 2013 claim. As the Board has granted a 100 percent rating as of April 18, 2013 (the date of his claim), the Veteran's earlier effective date has been rendered moot. (Continued on the next page) The Board notes that the Veteran is in receipt of the highest possible rating under DC 6350 and finds that no other appropriate diagnostic codes can be applied which would allow for a higher rating. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Massey, 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.