Citation Nr: 0301010 Decision Date: 01/16/03 Archive Date: 01/28/03 DOCKET NO. 00-11 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased evaluation for sarcoidosis with chorioretinitis, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from October 1951 to June 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The veteran's case was remanded for additional development in August 2001. It is again before the Board for appellate review. While the veteran's case was in a remand status, the disability rating for the issue on appeal was increased to 60 percent. FINDINGS OF FACT 1. The veteran's sarcoidosis, with a history of chorioretinitis, is manifested by a forced expiratory volume at one second (FEV-1) of 48 percent of the predicted value, a ratio of FEV-1 to forced vital capacity (FEV-1/FVC) of 69, and diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) at 55 percent of the predicted value. 2. There is no extrapulmonary involvement, and no evidence of cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, episodes of acute respiratory failure, or requirement for oxygen therapy. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for sarcoidosis, with a history of chorioretinitis, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2002); 38 C.F.R. §§ 4.1, 4.7, 4.97, Diagnostic Codes 6600, 6846 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The veteran served on active duty from October 1951 to June 1953. A review of his service medical records (SMRs) reflects that he was diagnosed with sarcoidosis of the lungs and mediastinal lymph nodes in May 1953. A hospital summary from that time also noted that the veteran was originally found to have areas of choroidal degeneration which were thought to be non-specific in origin but entirely compatible with pseudo-tubercle formation in Boeck's sarcoid. After a month of cortisone therapy, there was a complete clearing of the fundi and no evidence of choroidal degeneration. The veteran submitted his claim for VA disability compensation benefits in July 1953. He was afforded VA examinations in August 1953. The ophthalmology examination reported the veteran's vision as 20/15 bilaterally. There was no evidence of any residual disability and the examiner reported the veteran's eyes as "normal." The respiratory examination reported that there was no evidence of sarcoidosis at the time of the examination. A chest x-ray was interpreted to show that there was minimal fibrous pleurisy of the costophrenic angle on the left. There was no definite evidence of an infiltrate in either lung, no enlargement of the hila, and the heart shadow was not enlarged. The veteran was granted service connection for sarcoidosis and chorioretinitis in October 1953. He was assigned a noncompensable disability evaluation. The veteran submitted a request for VA medical treatment in January 1954. A medical evaluation conducted at that time reported the physical findings as totally negative. Associated with the claims folder is a VA hospital summary dated in July 1956. The veteran was treated for residuals of a motorcycle accident. There was no reference to any complaints or treatment for the veteran's service- connected sarcoidosis. The veteran submitted his current claim for an increased evaluation in July 1999. He was afforded a VA examination in November 1999. The veteran was reportedly on no medications. He said that he had taken antibiotics over the prior three weeks for an increased problem with his lungs. The veteran said that he had had recurrent fever and night sweats through the years and had gained and lost weight at different times. The veteran said he was evaluated twice for possible lung cancer. In 1963 it was determined that he had pneumonia. In 1988 he said he had an exacerbation of his sarcoidosis. The examiner reported that the veteran did not have enlarged lymph nodes. There was bilateral respiratory inspiratory and expiratory wheezes. The examiner noted decreased lung sounds in the bilateral lower lobes. The veteran said that he had a nonproductive cough but had had a productive cough prior to taking his antibiotics. A chest x-ray was interpreted to show bilateral patchy irregular infiltrates of the upper lobes with diffuse, soft tissue nodules. This was felt to possibly be consistent with sarcoidosis; however, metastases, tuberculosis or non-calcified granulomas could not be ruled out. The chest x-ray also showed evidence of chronic obstructive pulmonary disease (COPD). The diagnoses were COPD and upper lobe infiltrates, consistent with sarcoidosis. The veteran was afforded a pulmonary function test (PFT) as part of the examination. The results of the test revealed a FEV-1 as 70 percent of the predicted value. The results further showed a ratio of FEV-1 to FVC of 77 percent. The reported indicated that the ability to measure diffusion capacity of the lung for carbon monoxide by the single breath method (DLCO (SB)) was not functioning at the time of the test. The PFT examiner said that there were proportional mild reductions in FEV-1 and FVC but that the veteran had normal lung capacity. The PFT examiner further stated that there was no obstructive or restrictive ventilatory defect. The veteran's claim for an increased rating was denied in February 2000 and he was notified of the rating action that same month. The veteran submitted his notice of disagreement in March 2000. He said that he did not feel that he received an adequate examination in November 1999 because the testing machine was not functioning properly. The veteran's representative submitted a statement in May 2000. The representative repeated the veteran's assertion that he felt that the previous VA examination was inadequate due to the testing machine not being fully functional. Further, the veteran was to be prescribed Cortisone but had declined to take the drug because of possible side effects. The representative said that the veteran would obtain the private medical records to document his contention. Records from the Gandel Medical Group were received by the RO in June 2000. The records related to treatment provided to the veteran for the period from February 1988 to April 1997. Of note are a series of chest x-ray reports dated in 1990, 1991, 1995 and 1997. The April 1997 chest x-ray was interpreted to show chronic parenchymal infiltrates with some nodular densities bilaterally, both calcified and non-calcified. There were multiple blebs and bullae, pleural reaction and pleural diaphragmatic adhesions in both bases. Arteriosclerotic dilatation of the dorsal aorta was also noted. The findings on the chest x-ray were noted to be stable. A clinical entry dated in July 1990 noted the veteran's history of sarcoidosis in service. The examiner said that the veteran's chest x-ray was suggestive of pulmonary fibrosis but did not reveal any evidence of sarcoidosis. A follow-up entry dated in March 1991 reported that the examiner had reviewed the veteran's SMRs and noted the veteran's treatment for sarcoidosis in service. The examiner remarked that a chest x-ray done in July 1990 was consistent with old sarcoidosis. Another entry, dated in December 1995, noted that the veteran had not been seen at the clinic since 1993. The assessment was history of sarcoid. The examiner noted that the veteran was "anti- medicine" so he was not going to prescribe anything for the veteran's slight and expiratory wheeze. A final entry, dated in April 1997, did not note any complaints related to the veteran's sarcoidosis. The examiner did remark that the chest x-ray showed a great deal of fibronodular development and that the x-ray would be compared with prior x-rays. The veteran's claim was remanded by the Board in August 2001. The purpose of the remand was to afford the veteran a new VA examination that would provide FEV-1, FVC and DLCO (SB) values for rating purposes. The RO wrote to the veteran in September 2001. The RO advised the veteran of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA) (codified at Chapter 51 of United States Code), Public Law 106-475. The RO requested that the veteran identify any source of treatment for his sarcoidosis. He could either obtain the evidence himself or provide authorization for the RO to obtain any outstanding pertinent records. The veteran provided a statement in response to the RO's letter in November 2001. He gave a history of his treatment in the past and said that he could not remember the names of many of the doctors because he worked as an over-the-road truck driver and moved around. He also provided a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, in November 2001. He listed the names of several physicians and dates of treatment. The Grandel Medical Group, and physicians associated with the group, were identified as providers from 1987 to the present. The veteran also included a statement from one of the physicians, D. P. Parashak, M.D. that was dated in October 2001. Dr. Parashak noted that the veteran was previously a patient at the Grandel Medical Group but was now seeing Dr. Parashak on a private basis. He said that he had reviewed the veteran's prior medical records, which noted a history of sarcoidosis with chorioretinitis in service. Dr. Parashak commented that x-rays in the past had shown chronic parenchymal infiltrates with nodular densities bilaterally, both calcified and non-calcified, multiple blebs and bullae which may well be consistent with sarcoidosis. He concluded by opining that the veteran suffered from a chronic pulmonary disorder and that his x- ray and history were consistent with sarcoidosis. The RO obtained treatment records from Dr. Parashak in February 2002. The records consisted of evaluations conducted in April 1997 and October 2001. The April 1997 evaluation was duplicative of records from the Grandel Medical Group. The October 2001 evaluation noted that the veteran was treated for complaints related to an injury to the right shoulder suffered in a fall. Dr. Parashak noted that the veteran was on no medications. There were no respiratory complaints noted. The veteran was afforded a VA respiratory examination in April 2002. The examiner noted a review of the veteran's history with diagnosis and treatment of sarcoidosis with chorioretinitis in service. The examiner also noted a review of private treatment records. The examiner noted that the veteran's alleged that his diagnosis of COPD was due to his sarcoidosis but that the claim had been denied by the RO. The veteran said that he had a cough productive of sputum nearly every morning that was usually yellow in color, thick, and globular. There was no hemoptysis. The veteran said that he had a good appetite. He had some daytime somnolence and snored a lot. He said that he would wake up at night. The veteran said that he would become short of breath when walking up hills but could walk about two miles. He had no visual problems except in seeing a computer screen. There was no history of asthma. The veteran was prescribed Singulair that provided some relief. The veteran said he was also prescribed Advair Diskus but had not yet received the drug. The veteran said that he had previously used an oral inhalator but did not think that it had helped. The examiner said that the veteran had not required treatment with systemic corticosteroids since the time of his initial diagnosis in 1953. The veteran related being hospitalized in 1963 and 1988, he said there had been other hospitalizations but he could not remember where. The examiner reported that there was no evidence of lymphadenopathy. The veteran had normal diaphragmatic excursions bilaterally. There were inspiratory and expiratory wheezes, especially on the right. The examiner noted that no formal exercise test was performed but, by history, the veteran had only a moderate reduction in exercise capacity. The veteran was afforded a PFT as part of the overall examination. The veteran had a pre-bronchodilator (pre- dilator) FEV-1 value of 48 percent of predicted value and a FEV-1 post-bronchodilator (post-dilator) value of 52 percent. The veteran's pre-dilator FEV-1/FVC ratio was 83. His post-dilator FEV-1/FVC ratio was 69. The veteran also had a pre-dilator DLCO (SB) value of 55 percent. The PFT examiner remarked that there were incomplete FVC maneuvers with poor initial flows. There were normal FEV- 1/FVC ratios but the FEV-1/slow vital capacity (SVC) was 67 percent, consistent with obstruction. The PFT examiner remarked that there was no response to bronchodilatation. The veteran's lung volumes showed mild reduction in thoracic gas volume (TGC) and total lung capacity (TLC). There was reduced DLCO that the examiner said was normal after adjustment for alveolar volume. The examiner stated that there was combined restrictive and obstructive ventilatory defect of moderate severity. The respiratory examiner noted the results of the PFT. The results of a chest x-ray were also noted to show no change since the chest x-ray done in November 1999. The diagnosis was sarcoidosis with moderate pulmonary function impairment. The examiner added that the veteran also had clinical and pulmonary function evidence for chronic bronchitis and had been treated for respiratory complaints over several years. The reduction in lung volume and DLCO could reasonably be attributed to the after effects of his sarcoidosis. The examiner stated that he did not believe that there was evidence of current active disease. The examiner also stated that the symptoms of dyspnea on exertion were most likely due to the coexisting chronic bronchitis. The chronic bronchitis was due to the veteran's previous cigarette smoking. The examiner opined that no etiologic link could be established between the chronic bronchitis and the service-connected sarcoidosis. There was no evidence of extrapulmonary sarcoidosis. Further, the veteran did not require treatment with corticosteroids for his sarcoidosis. The veteran's disability rating was increased to 60 percent in August 2002. The effective date of the increase was as of the date of claim in July 1999. Finally, a VA outpatient treatment record, dated in June 2002, was associated with the claims folder. The entry reflects that it was the veteran's first visit to the medical center. He complained of some shortness of breath and back pain. Physical examination noted that the veteran's breath sounds on the right were coarse. A faint expiratory wheeze was noted. The assessment was sarcoidosis and COPD. II. Analysis Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (2002). Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7. Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. 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 (2002). The veteran's sarcoidosis has been rated as analogous to chronic bronchitis under Diagnostic Code 6600. 38 C.F.R. § 4.97 (2002). Under Diagnostic Code 6600 a 60 percent rating is warranted if the FEV-1 is from 40 to 55 percent predicted, or; if the ratio FEV-1/FVC is from 40 to 55 percent predicted, or; if the DLCO (SB) is from 40 to 55 percent predicted, or; maximum oxygen consumption of 15 to 20 mk/kg/min (with cardiorespiratory limit). The maximum rating of 100 percent is warranted if the FEV-1 is less than 40 percent predicted, or; if the FEV-1/FVC ratio is less than 40 percent predicted, or; if the DLCO (SB) is less than 40 percent predicted, or; maximum exercise capacity less than 15 mk/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. Id. In this case, the veteran's sarcoidosis disability rating was increased to 60 percent in August 2002 based on the results of the April 2002 VA PFT. The veteran's FEV-1 value was 48 percent of the predicted value and his DLCO (SB) value was 55 percent of the predicted value. Either finding satisfies the criteria for a 60 percent rating under Diagnostic Code 6600. The findings from the April 2002 PFT do not satisfy the criteria for a 100 percent rating based on the FEV-1, FEV-1/FVC, and DLCO (SB) values. Moreover, the values from the November 1999 VA PFT are such that they would not justify a rating of 60 percent. In reviewing the other criteria listed to warrant a 100 percent rating the Board notes that the veteran was not given an exercise test at his last examination because he claimed that he could walk two miles and only had some shortness of breath walking up hill. Further, there is no evidence of cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension, episode(s) of acute respiratory failure, or that the veteran requires outpatient oxygen therapy. In the absence of any of the necessary symptoms or diagnoses, there is no basis to justify the 100 percent rating under Diagnostic 6600. Previously, the veteran's disability was rated under Diagnostic Code 6846. 38 C.F.R. § 4.97. Diagnostic Code 6846 is the primary diagnostic code used to evaluate sarcoidosis disability ratings. Under Diagnostic Code 6846 a 60 percent evaluation is in order in cases of pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control. A 100 percent evaluation is for assignment in cases of cor pulmonale, or cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. Id. The veteran does not satisfy the rating criteria for either the 60 or 100 percent rating under Diagnostic Code 6846. There is no evidence of record to show that he requires systemic high dose corticosteroids for control, or evidence of cor pulmonale or cardiac involvement with congestive heart failure. The veteran has said that he has suffered from fever, night sweats and weight loss through the years; however, this is not supported by the treatment records that reflect no such complaints at any time. Further, there is no indication that the veteran has suffered any weight loss. Indeed, the records reflect increasing weight through the years for the most part. Accordingly, there is no basis to warrant the assignment of a 100 percent rating under Diagnostic Code 6846. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting an increased disability evaluation for the veteran's service-connected sarcoidosis, with a history of chorioretinitis. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b) (West Supp. 2002); 38 C.F.R. § 3.102 (2001). The Board notes that 38 C.F.R. § 3.102 was amended in August 2001, effective as of November 9, 2000. See 66 Fed. Reg. 45,620-32 (Aug. 29, 2001). However, the change to 38 C.F.R. § 3.102 eliminated the reference to submitting evidence to establish a well-grounded claim and did not amend the provision as it pertains to the weighing of evidence and applying reasonable doubt. Accordingly, the amendment is not for application in this case. In denying the veteran's claim, the Board has considered the applicability of the (VCAA) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West Supp. 2002)), which became effective during the pendency of this appeal. VA has also issued final regulations to implement these statutory changes. See Duty to Assist, 66 Fed. Reg. 45,620-32. (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), which are not applicable in this case, the changes "merely implement the VCAA and do not provide any rights other than those provided by the VCAA." See 66 Fed. Reg. at 45,629. A discussion of the pertinent VCAA and regulatory provisions follows. Under 38 U.S.C.A. § 5102 (West Supp. 2002) and 38 C.F.R. § 3.159(b)(2) (2002), the Secretary has a duty to notify a claimant if an application for benefits is incomplete. The notice must inform the applicant of any information necessary to complete the application. In this case, the application is complete. There is no outstanding information required, such as proof of service, type of benefit sought, or status of the veteran, to complete the application. The veteran is seeking an increased rating for a disability that has been service-connected for nearly 50 years. Newly codified 38 U.S.C.A. § 5103 (West Supp. 2002) requires certain notices be provided by the Secretary when in receipt of a complete or substantially complete application. The purpose of the first notice is to advise the claimant of any information, or any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. The Secretary is to advise the claimant of that information and evidence that is to be provided by the claimant and what is to be provided by the Secretary. 38 U.S.C.A. § 5103(a) (West Supp. 2002). In those cases where notice is provided to the claimant, a second notice is to be provided to advise that if such information or evidence is not received within one year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application. 38 U.S.C.A. § 5103(b) (West Supp. 2002). In addition, 38 C.F.R. § 3.159(b) details the procedures by which VA will carry out its duty to assist by way of providing notice. In this case, the veteran was notified in March 2000 of the denial of an increased evaluation for his sarcoidosis. He was also notified of the basis for the denial, namely that his symptoms did not satisfy the rating criteria so as to justify an increased evaluation. The veteran submitted his notice of disagreement in March 2000 wherein he stated his contentions as to why his disability evaluation should be higher. He was provided a statement of the case (SOC) in May 2000 which addressed the entire development of his claim up to that point. The SOC addressed the procedural aspects of the case, provided a recitation of the pertinent statutes and regulations, and discussed the application of the evidence to the veteran's claim. The Board remanded the veteran's case for additional development in August 2001. The remand discussed the enactment of the VCAA and its application to the veteran's claim. The RO wrote to the veteran in September 2001, further explaining the notices required under the VCAA. The veteran responded to that letter in November 2001. The veteran was provided supplemental statements of the case (SSOC) in June 2000, and August 2002 that reviewed the accumulated evidence and re-stated the bases for the denial of his claims. In reviewing the requirements regarding notice found at 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot find any absence of notice in this case. As reviewed above, the veteran has been provided notice regarding the type of evidence needed to support his claim for an increased rating. He has responded to the notices provided. In summary, the Board finds that no additional notice is required under the provisions of 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The duty to assist claimants under the VCAA is codified under 38 U.S.C.A. § 5103A (West Supp. 2002) and established by regulation at 38 C.F.R. § 3.159(c)-(e). This section of the VCAA and regulation sets forth several duties for the Secretary in those cases where there is outstanding evidence to be obtained and reviewed in association with a claim for benefits. However, in this case there is no outstanding evidence to be obtained, either by the VA or the veteran. There are private treatment records submitted by the veteran and obtained by VA on behalf of the veteran. Further, there are two VA examination reports evaluating the veteran's service- connected disability. Outpatient VA treatment records for the veteran were obtained and associated with the claims folder. The veteran has submitted several statements in support of his claim. The veteran elected to cancel a hearing that was scheduled in June 2000. The Board finds that every effort has been made to seek out evidence helpful to the veteran. This includes specific evidence identified by the veteran and evidence discovered during the course of processing his claim. The veteran has not alleged that there is any outstanding evidence that would support his contentions, other than that already requested of him. The Board is not aware of any such evidence. Therefore, the Board finds that the VA has complied with the spirit and the intent of the duty- to-assist requirements found at 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). Thus, in the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426,430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duties to inform and assist the veteran in this case. Further development of the claim and further expending of VA's resources are not warranted. Cf. Wensch v. Principi, 15 Vet. App. 362, 367- 68 (2001); Dela Cruz v. Principi, 15 Vet. App. 145, 149 (2001). ORDER Entitlement to an increased evaluation for sarcoidosis with chorioretinitis is denied. MARK F. HALSEY Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.