Citation NR: 9620866 Decision Date: 07/22/96 Archive Date: 08/02/96 DOCKET NO. 92-17 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an evaluation in excess of 10 percent for human immunodeficiency virus infection with generalized lymphadenopathy. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD P. J. Somelofske, Associate Counsel INTRODUCTION The veteran served on active duty from July 1974 to July 1977. A Board of Veterans' Appeals (Board) decision, dated in March 1991, granted service connection for human immunodeficiency virus (HIV) infection under the provisions of 38 U.S.C.A. § 351 (now 38 U.S.C.A. § 1151 (West 1991 & Supp. 1995)). This matter came before the Board on appeal from a June 1991 rating decision of the Department of Veterans Affairs (VA), Jackson, Mississippi, Regional Office (RO), that effectuated the March 1991 Board decision and assigned a 10 percent evaluation for HIV infection with generalized lymphadenopathy. This case was previously before the Board and was remanded to the RO in July 1994 for further development, to include consideration of the issue of service connection for a psychiatric disorder, claimed as secondary to the veteran’s service-connected HIV infection with generalized lymphadenopathy. In a rating decision dated in June 1995, service connection for dysthymic disorder was granted and a 10 percent evaluation was assigned, effective from February 22, 1995. In written argument to the Board, dated in April 1996, the veteran’s representative, on behalf of the veteran, argued that the effective date for the grant of service connection and award of compensation for the veteran’s service-connected dysthymic disorder should be sometime in February 1987, when the manifestations of the disorder were first recorded. The Board construes this to be a notice of disagreement with the assignment of the effective date for the veteran’s service-connected dysthymic disorder; it is noted that the veteran has not received a statement of the case with regard to this issue. This matter, therefore, is referred to the RO for appropriate action. In his March 1992 substantive appeal, the veteran indicated that he has periumbilical suture infections. Inasmuch as residuals of surgery for ulcer disease are service connected, this matter, too, is referred to the RO for appropriate action. In February 1996, the veteran’s representative submitted additional evidence to the Board in support of the veteran’s claim. In May 1996, the representative waived consideration of this evidence by the RO pursuant to 38 C.F.R. § 20.1304(c) (1995). Although the matter has been raised, it does not appear from the record that the RO has considered entitlement to an increased rating on an extraschedular basis under the provisions of 38 C.F.R. § 3.321(b)(1) (1995), for the veteran’s service-connected HIV infection. Under Fisher v. Principi, 4 Vet.App. 57, 60 (1993), the question of extraschedular consideration is a separate issue from the issue of the appropriate schedular evaluation to be assigned. Further, under Floyd v. Brown, No. 92-970 (U.S. Vet.App. April 17, 1996), the Board cannot make that determination in the first instance. Accordingly, the question of potential extraschedular consideration for the veteran’s service- connected HIV infection with generalized lymphadenopathy is referred to the attention of the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that the RO committed error by denying an evaluation in excess of 10 percent for HIV infection with generalized lymphadenopathy. The veteran asserts that, while his service-connected disability is presently asymptomatic, he has gone from a fully functional individual to one who has “little to show for his life.” He maintains that he had to retire from his job as a food handler and that he is unable to tolerate the effects of the medication prescribed for his service-connected disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claim for an evaluation in excess of 10 percent for human immunodeficiency virus infection with generalized lymphadenopathy. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The evidence shows that the veteran has HIV infection but that he does not have AIDS. 3. Currently, the veteran takes azidothymidine (AZT) for his HIV infection; his T-4 cell count is below 500, but not under 200. 4. Although he complains of intermittent lymphadenopathy, occasional fatigue and loss of appetite, there have been no confirmed episodes of opportunistic infections; his disability is currently asymptomatic. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for human immunodeficiency virus infection with generalized lymphadenopathy, have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991 & Supp. 1995); 38 C.F.R. §§ 4.7, 4.88b, Diagnostic Code 6351 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has carefully considered the evidence compiled by and on behalf of the veteran. It has been determined that the veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a). See Proscelle v. Derwinski, 2 Vet.App. 629 (1992). This case was previously before the Board and was remanded to the RO in July 1994 for further development. The Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the veteran in developing the facts pertinent to his claim is required to comply with the duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of 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. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2 (1995), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). Facts The veteran’s service medical records are negative for findings of HIV infection. A report of VA hospitalization in September 1984 reflects that the veteran underwent an esopho- gastrointestinal endoscopy, exploratory laparotomy, vagotomy, Weinberg pyeloplasty, and oversewing of a bleeding prepyloric ulcer. It was noted that during the course of his hospitalization, multiple transfusions were required. The veteran was again hospitalized in October 1984 for abdominal pain, fever, and loose stools; the report of VA hospitalization reflects diagnoses of hepatitis or CMV secondary to blood transfusions during surgery in September 1984. A report of private hospitalization in September 1985 reflects that the veteran was admitted for generalized adenopathy and weight loss. It was reported by way of history that the veteran underwent a biopsy of cervical lymph nodes in December 1984 and that pathological examination revealed “reactive hyperplasia” with no specific diagnosis. The veteran had indicated that he had lost fifteen to twenty pounds since that time. The impression was generalized adenopathy and weight loss, etiology unknown. At that time, an excisional biopsy of the right anterior cervical lymph nodes was performed. The impression was generalized lymphadenopathy, etiology unclear; it was noted that possibilities included granulomatous disease or an immune disorder, perhaps related to an HTLV-III infection. Subsequently, VA examination in February 1987 revealed findings that were compatible with a diagnosis of AIDS- related complex. In a Board decision dated in March 1991, service connection for HIV infection was granted on the basis that the preponderance of the evidence supported the conclusion that the veteran accidentally contracted HIV infection as a result of blood transfusions while hospitalized in September 1984. Thereafter, a rating decision dated in June 1991 effectuated the March 1991 Board decision and assigned a 10 percent evaluation for HIV infection with generalized lymphadenopathy based on the evidence of record revealing generalized lymphadenopathy without concurrent illness. Private treatment records, dated from July 1985 through November 1993, reveal that the veteran had been tested and treated for HIV infection, and that AZT had been prescribed. A laboratory report, dated in June 1991, indicates that the veteran’s T-4 cell count was 400. On VA examination in April 1992, the veteran complained of loss of appetite, nausea and fatigue; it was noted that he had been taking AZT for the past two years. Physical examination showed the veteran’s weight to be 126 pounds; he reported that his weight in the past year fluctuated between 119 and 126 pounds. There was no evidence of Candida on his tongue; a lymph node high on the left posterior, some anterior cervical nodes, some axillary nodes and some inguinal nodes were observed. Blood studies did not include the veteran’s T-4 cell count, but his white blood cell count was reported to be low and outside the normal range. The diagnoses included history of HIV infection with adenopathy, on AZT therapy, and leukopenia, probably secondary to AZT therapy, A May 1992 VA treatment record notes that the veteran reported that his last T-4 cell count was in March 1992 and was in “the 300 range;” he reported suffering no opportunistic infections up to that time. Although blood was taken for study, no results were reported. The impression was an HIV-positive male, asymptomatic by history, on AZT. A June 1992 VA treatment record notes that blood taken from the veteran in May 1992 was never received by the laboratory; an additional work-up was ordered. The veteran’s white blood cell count was reported to be low and outside the normal range; his T-4 cell count was noted to be 613. A July 1992 VA treatment record notes that the veteran was asymptomatic, with no fever, chills, night sweats, weight loss or diarrhea. It was also noted that no thrush or rashes were present and that he was taking AZT. An October 1992 VA treatment record also reflects that the veteran’s HIV infection was asymptomatic. A January 1993 VA treatment record notes that the veteran reported feeling quite well and having good energy and a good appetite. He expressed no complaints of fever or night sweats. A laboratory report showed his white blood cell count to be low and outside the normal range. It was indicated that his prescription for AZT was to be refilled. An April 1993 VA treatment record notes that the veteran’s HIV infection was asymptomatic and that his T-4 cell count in January 1993 was 583; a laboratory report showed his white blood cell count to be low and outside the normal range. A July 1993 VA treatment record notes that the veteran reported AZT made him feel “edgy.” He indicated that he was still active with a good energy level and appetite; he reported no fever, night sweats, or diarrhea. The impression was an HIV- positive male, asymptomatic. An August 1993 laboratory report showed his white blood cell count to be low and outside the normal range; his T-4 cell count was reported to be 251. A subsequent August 1993 VA treatment record noted the veteran’s declining T-4 cell count and his prolonged duration of AZT treatment. It was believed that AZT was no longer beneficial and dideoxyinosine (DDI) was prescribed. An October 1993 VA treatment record reflects that the veteran indicated that he generally felt well; he reported no complaints of fever, weight loss, shortness of breath, nausea or abdominal pain. He also indicated that since switching to DDI he had had general pruritus and felt “nervous.” A December 1993 VA treatment record notes that the veteran complained of fatigue and subnormal appetite, without fever or chills. It was noted that he was poorly compliant with DDI due to the bad taste and that he did not want to take it any longer. He also indicated that he did not want to start any other agents at that time. The plan was to discontinue DDI. A March 1994 VA treatment record indicates that the veteran complained of being tired with some anorexia, without fever or chills. A laboratory report showed his white blood cell count to be low and outside the normal range. The impression of the examiner was an HIV-positive male, stable, no acute distress. Subsequently, a June 1994 VA treatment record reflects that the veteran reported feeling tired, but that he had no recent febrile illnesses. An immunodeficiency analysis revealed the veteran’s T-4 cell count to be 322. The impression of the examiner was an HIV-positive male, stable. A December 1994 VA treatment record notes that the veteran is an HIV-positive male, asymptomatic, with a T-4 cell count in the 250 to 350 range, and that he had no complaints of fever, fatigue, anorexia, shortness of breath, weight loss or diarrhea A February 1995 statement from a VA infectious disease physician indicates that the veteran’s overall health was good and that he was asymptomatic despite his HIV-positive status. It was noted that the veteran’s last T-4 cell count was 322 in December 1994. The doctor stated that the veteran did not have AIDS as defined by the Center for Disease Control. On VA psychiatric examination in February 1995, it was noted that the veteran was mildly depressed because of his positive HIV status. It was also noted that he might be developing a mild organic brain syndrome, but that he exhibited no appreciable impairment on examination. It was noted that his current medications included Trazadone and Zantac. Dysthymic disorder was diagnosed. In a March 1995 VA treatment record it was noted that the veteran’s T-4 cell count was relatively stable, and that he still did not desire any anti-retroviral medication. The impression was an HIV-positive male, stable. A subsequent March 1995 VA treatment record reflects that the veteran complained of depression and sadness about his HIV-positive status, fatigue, poor appetite, short-term memory loss and a decreased ability to concentrate. He reported no complaints of fever, weight loss or diarrhea, and reiterated that he did not tolerate AZT or DDI very well. A September 1995 VA treatment record reveals that the veteran reported no episodes of fever, anorexia, chills, fatigue, nausea, shortness of breath, or diarrhea; it was noted that he was HIV-positive, asymptomatic. A January 1996 VA treatment record notes that the veteran last T-4 cell count was reported to be 315; it was indicated that he was doing well on no medication. A subsequent January 1996 VA treatment record notes that the veteran’s last T-4 cell count, taken earlier that month, was 230. The impression of the examiner was an HIV-positive male, asymptomatic; it was indicated that the veteran would again begin AZT. A February 1996 VA treatment record notes that the veteran’s last T-4 cell count was 251. Analysis Prior to March 24, l992, the VA used three diagnostic codes for rating HIV-related illness: Diagnostic Code 635l for acquired immunodeficiency syndrome (AIDS); Diagnostic Code 6352 for AIDS Related Complex; and Diagnostic Code 6353 for HIV seropositivity. Where a veteran was HIV seropositive, i.e., his or her body had produced antibodies to HIV as identified through laboratory testing only, without underlying disease, a noncompensable evaluation was assignable under Diagnostic Code 6353. Diagnostic Codes 635l and 6352 were rated according to the severity of the "underlying diseases", i.e., the constitutional or neurologic disease, opportunistic infection, etc., associated with HIV- related illnesses. As for any other disorder for which separate diagnostic criteria were not provided, HIV-related illness was rated by analogy. 38 C.F.R. § 4.20 (1991). Prior to March 24, l992, in rating HIV infection by analogy to systemic (disseminated) lupus erythematosus, a 10 percent evaluation was warranted with exacerbations once or twice a year or when the disease had been symptomatic during the past two years. A 30 percent evaluation was warranted when there were exacerbations lasting a week or more which occurred two or three times a year or related symptomatology productive of moderate impairment of health. A 60 percent evaluation required frequent exacerbations and multiple joint and organ manifestations which were productive of moderately severe impairment of health. An 80 percent evaluation was warranted with lesser disability, but with symptom combinations productive of a severe impairment of health. Any related residuals (joint, renal, pleural or other disability) were separately evaluated under the provisions of diagnostic codes pertaining to the evaluation of disability of the bodily system, or systems, involved. Evaluations for residuals were not combined with evaluations for active disease, however. The method of evaluation (i.e., evaluation for active disease or for residual disability) which produced the higher evaluation controlled. Acute systemic (disseminated) lupus erythematosus with constitutional manifestations associated with serous or synovial membrane or visceral involvement or other symptom combinations which were totally incapacitating warranted a 100 percent evaluation. 38 C.F.R. §§ 4.88a, 4.20, Diagnostic Codes 635l-6350. In the June 1991 rating decision, which effectuated the March 1991 Board decision granting service connection for HIV infection with generalized lymphadenopathy, the RO assigned a 10 percent evaluation utilizing the "old" provisions cited above under Diagnostic Code 6351. Under the criteria in effect since March 24, l992, a zero percent evaluation is assignable for HIV-related illness when the disease is asymptomatic, following initial diagnosis of HIV infection, with or without lymphadenopathy or decreased T4 cell count. A 10 percent evaluation is warranted for HIV- related illness following the development of definite medical symptoms, and when the veteran’s T-4 cell count is less than 500 and he is on approved medication(s), or when there is evidence of depression or memory loss with employment limitations. A 30 percent evaluation is warranted for HIV- related illness for recurrent constitutional symptoms and intermittent diarrhea, if the veteran is on approved medication(s). A 30 percent evaluation will be the minimum rating when the T4 cell count is less than 200, or when Hairy Cell Leukoplakia or Oral Candidiasis is present. A 60 percent evaluation is warranted for HIV-related illness when there are refractory constitutional symptoms, diarrhea, and pathological weight loss. The minimum rating will be 60 percent, following the development of AIDS related opportunistic infection or neoplasm. A 100 percent schedular evaluation will be assigned for HIV-related illness when AIDS is present with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems. A 100 percent schedular evaluation is also warranted for HIV- related illness with debility or progressive weight loss, without remission, or few or brief remissions. 38 C.F.R. § 4.88b, Diagnostic Code 6351. The United States Court of Veterans Appeals has determined that where the law or regulations change after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet.App. 308 (1991); White v. Derwinski, 1 Vet.App. 519 (1991). Accordingly, the Board will consider the veteran’s claim for an evaluation in excess of 10 percent for HIV infection with generalized lymphadenopathy under the provisions in effect both before and since March l992. The clinical evidence of record shows that the veteran’s service-connected HIV-infection is currently asymptomatic. He has never been shown to have AIDS, nor does he have a history of opportunistic infections or other complications of being HIV positive. His most recent T-4 cell count, reported in February 1996, was noted to be 251, and it appears that he is again taking AZT. There is no evidence of remote or recent episodes of fever, diarrhea or opportunistic infections and, for the most part, he has been described as asymptomatic and stable. In view of the above, a compensable evaluation for HIV infection with generalized lymphadenopathy would not be warranted under the criteria in effect prior to March 24, 1992. See 38 C.F.R. §§ 4.88a, 4.20, Diagnostic Codes 6350, 6351, 6352, 6353. However, as the veteran’s T-4 cell count is below 500 (but not under 200) and as he is on approved medication, a 10 percent evaluation for HIV infection with generalized lymphadenopathy is warranted under the diagnostic criteria in effect since March 24, 1992. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.7, 4.88b, Diagnostic Code 6531. While the veteran occasionally reports feeling tired and fatigued with loss of appetite, the evidence shows that his HIV infection is not manifested by episodes of fever, diarrhea or opportunistic infection, and that he does not have Hairy Cell Leukoplakia or oral Candidiasis. Accordingly, an evaluation in excess of 10 percent is not warranted. Id. It is noted that, while the veteran asserts that he is depressed over his HIV status, service connection has been granted for dysthymic disorder and a separate 10 percent rating has been assigned for that disability. In sum, the Board concludes that the rating criteria in effect since March 24, 1992, are most favorable to the veteran, but that those criteria do not afford a basis for an increased rating. As the veteran’s HIV infection is currently asymptomatic, as his T-4 cell count has never been shown to be below 200, and as his only symptomatology appears to be occasional fatigue and loss of appetite, the Board finds that the disability picture more nearly approximates the criteria for a 10 percent evaluation. Id. ORDER An evaluation in excess of 10 percent for human immunodeficiency virus infection with generalized lymphadenopathy is denied. JANE E. SHARP Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -