Citation Nr: 0800540 Decision Date: 01/07/08 Archive Date: 01/22/08 DOCKET NO. 06-22 040 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUES 1. Entitlement to an initial, compensable rating for sleep apnea, prior to December 13, 2005. 2. Entitlement to service connection for hemorrhoids. 3. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran and her spouse ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The veteran had active service from October 1970 to August 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision in which the RO, among other things, granted service connection and assigned an initial 0 percent (noncompensable) rating for sleep apnea, effective J, and denied service connection for hemorrhoids and a bilateral foot disability. The veteran filed a notice of disagreement (NOD) in June 2005, and the RO issued a statement of the case (SOC) in June 2006. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in June 2006. A July 2007 supplemental SOC (SSOC) reflects the RO's continued denial of the claims. In an August 2007 SSOC, the RO increased the rating for sleep apnea to 50 percent, effective December 13, 2005, but continued the denial of each claim for service connection. Inasmuch as the claim for a higher rating for sleep apnea involves disagreement with the initial rating assigned following the grant of service connection, the Board has characterized that issue in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999). In September 2007, the veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the veteran expressed satisfaction with the 50 percent rating granted from December 13, 2005 (Hearing transcript, p. 2). However, as a higher initial rating for sleep apnea is available prior to December 13, 2005, and the veteran is presumed to seek the maximum available benefit, the matter of an initial, compensable rating for sleep apnea, prior to December 13, 2005, remains for appellate consideration, as reflected on the title page. See Fenderson, 12 Vet. App. at 126; AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board's decision on the claim for an initial, compensable rating for sleep apnea, prior to December 13, 2005, is set forth below. The claims for service connection for hemorrhoids and bilateral foot disabilities are addressed in the remand following the order; these matters are being remanded to RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on her part, is required. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. The record reflects that the veteran required the use of a continuous airway pressure (CPAP) machine as of March 17, 2004; however, from the January 30, 2004 effective date of the grant of service connection to March 16 2004, there is no evidence indicating that the veteran required the use of a CPAP machine or experienced persistent daytime hypersomnolence; nor is there evidence of chronic respiratory failure at any time prior to December 13, 2005. CONCLUSIONS OF LAW 1. For the period from January 30, 2004 to March 16, 2004, the criteria for an initial, compensable rating for sleep apnea are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6847 (2004). 2. As of March 17, 2004, the criteria for a 50 percent rating for sleep apnea were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6847 (2004-2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, a July 2004 pre-rating letter provided notice to the veteran regarding what information and evidence was needed to substantiate the claim for service connection for sleep apnea (as it then was), as well as what information and evidence must be submitted by the veteran, what information and evidence would be obtained by VA, and the need for the veteran to advise VA of and to submit any further evidence that is relevant to the claim. Also in that letter, the RO explained (in connection with other claims for increased ratings) that in order to establish entitlement to an increased rating, the veteran had to show that her service connected condition had gotten worse. Thus, even though service connection was subsequently granted and the claim for service connection for sleep apnea became one for a higher initial rating for sleep apnea, the veteran had already been informed that in order to establish entitlement to a higher rating, she had to show the disability had increased in severity. Hence, the RO's July 2004 letter met all four of Pelegrini's content of notice requirements as well as the VCAA's timing of notice requirement. Moreover, the veteran's written statements and testimony during the Board hearing reflect that she understood that in order to establish entitlement to a higher initial rating for sleep apnea, she had to show that the disability was more severe than reflected by the initial noncompensable rating. Consequently, any error this regard was "cured by actual knowledge on the part of the claimant." See Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir 2007). Regarding the Dingess/Hartman notice requirements, the RO included the rating criteria for all higher ratings for sleep apnea in the June 2006 SOC. Moreover, a March 2006 letter informed the veteran how disability ratings and effective dates are assigned and the type of evidence that impacts those determinations. After issuance of the March 2006 letter and June 2006 SOC, and opportunity for the veteran to respond, the July and August 2007 SSOCs reflect readjudication of the claim. Hence, the veteran is not shown to be prejudiced by the timing of Dingess-compliant notice. Cf. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of the veteran's service medical records, post-service private medical records, as well VA outpatient treatment (VAOPT) records and reports of VA examinations. Also of record and considered in connection with the appeal is the transcript of the August 2007 Board hearing, as well as various written statements provided by the veteran and by her representative, on her behalf. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO, the veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the claim, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error and affirming that the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. Part 4 (2007). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2007). The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2007); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is or primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in Fenderson, the United States Court of Appeals for Veterans Claims noted an important distinction between an appeal involving a veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection, and consideration of the appropriateness of "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts found), are both required. See Fenderson, 12 Vet. App. at 126. The veteran's sleep apnea has been rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6847. Under DC 6847, a noncompensable rating is assigned for being asymptomatic but with documented sleep disorder breathing. A 30 percent rating is assigned when there is persistent daytime hypersomnolence. The assignment of a 50 percent rating requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine, and a 100 percent rating is warranted when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale, or if a tracheostomy is required. The RO awarded a 50 percent rating for the veteran's sleep apnea, effective December 13, 2005, because it found that this was the date on which it became apparent that she needed a CPAP machine, as evidenced by the date of the receipt for the rental of a CPAP machine and the purchase of related equipment. However, a 50 percent rating under DC 6847 does not require that a CPAP machine be purchased or rented. Rather, a 50 percent rating is warranted where the sleep apnea "requires use of breathing assistance device such as CPAP machine." A March 17, 2004 National Jewish Medical and Research Center treatment note reflects that the veteran was assessed with sleep apnea and daytime fatigue/fogginess, and the plan/treatment indicated a sleep study with evaluation and "CPAP fitting." As this is the first medical evidence that reflected that a CPAP machine was required for the veteran's sleep apnea, the veteran is entitled to a 50 percent rating as of that date. See 38 C.F.R. §§ 3.400 & 3.400(o)(1) (2007) (for original claims and claims for increase, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later). However, there is no basis for awarding a 50 percent rating prior to March 17, 2004-precisely, for the period from the January 30, 2004 effective date of the grant of service connection and March 16, 2004-because there are no medical records reflecting that a CPAP machine was required or that she experienced persistent daytime hypersomnolence during this time period. The Board notes that a March 10, 2004 National Jewish Medical and Research Center treatment note indicates that the veteran was "interested in CPAP," but that a follow-up was needed to assess this need. Consequently, the Board finds that a CPAP machine was not "required" at this time. Moreover, the veteran is not entitled to an initial rating in excess of 50 percent at any time prior to December 13, 2005, because there is no evidence that she had chronic respiratory failure with carbon dioxide retention or cor pulmonale, or that a tracheostomy was required. Additionally, the Board finds that there is no showing that, at any point prior to December 13, 2005, the veteran's sleep apnea reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (as cited in the June 2006 SOC). During the period in question, this disability was not objectively shown to markedly interfere with employment (i.e., beyond that contemplated in the rating assigned at each stage), or to warrant frequent periods of hospitalization. There also is no evidence, that, during the , or to otherwise render impractical the application of the regular schedular standards. Hence, the Board finds that the criteria for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Under these circumstances, the Board concludes that, while a 50 percent rating for sleep apnea is warranted from March 17, 2004, an initial, compensable rating for sleep apnea-for the period from the January 30, 2004 effective date of the grant of service connection to March 16, 2004-must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of a higher rating prior to March 17, 2004, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (West 2002 & Supp. 2007); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An initial, compensable rating for sleep apnea, for the period from January 30, 2004 to March 16, 2004, is denied. A 50 percent rating for sleep apnea, for the period from March 17, 2004 to December 12, 2005, is granted, subject to the law and regulations governing the payment of compensation benefits. REMAND The Board's review of the claims file reveals additional RO action on the claims for service connection is warranted. The veteran has been diagnosed with hemorrhoids and multiple bilateral foot disabilities, including plantar fasciitis, bilateral foot strain with DJD on X-ray, right hallux rigidis, and flat feet. The service medical records contain multiple notations of complaints, treatment, and diagnoses of bilateral foot problems, to include contusion of the arch of the left foot, left foot pain, a right great toe injury, and right great toe bursitis. Also noted was a pre-service right foot fracture that had healed. Moreover, the veteran indicated in several reports of medical history that she had experienced foot trouble. In addition, a service medical record dated May 1979 indicates that the veteran was diagnosed with hemorrhoids in service. Where there is evidence of a current disability, VA will provide a medical examination or obtain a medical opinion if the evidence indicates that a current disability may be associated with military service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2007), 38 C.F.R. § 3.159(c)(4)(i) (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, there is evidence of a current bilateral foot disabilities and hemorrhoids and evidence of such problems. As the evidence thus indicates that there may be a nexus between current hemorrhoids and/or bilateral foot disabilities and service, VA examinations to obtain medical nexus opinions are warranted. See McLendon, 20 Vet. App. at 83. Hence, the RO should arrange for the veteran to undergo VA genitourinary and orthopedic examinations, by appropriate physicians, at a VA medical facility. The veteran is hereby notified that failure to report to any scheduled examination(s), without good cause, may result in a denial of the claim(s) (as the original claims will be considered on the basis of evidence of record). See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of any such examination(s) sent to him by the pertinent VA medical facility. Additionally, to ensure that all due process requirements are met, prior to arranging for the veteran to undergo further examination, the RO should give the veteran another opportunity to present information and/or evidence pertinent to his claims on appeal. The RO's notice letter to the veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also request that the veteran furnish any pertinent evidence in his possession, and ensure that its letter to the veteran meets the requirements of Dingess/Hartman (cited above), as regards the five elements of a claim for service connection-particularly, disability ratings and effective dates-as appropriate. After providing the appropriate notice, the RO should attempt to obtain any additional evidence for which the veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2006). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the veteran and her representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should request that the veteran furnish all pertinent evidence in her possession, and ensure that its notice meets the requirements of Dingess/Hartman (cited above)-particularly, disability ratings and effective dates-as appropriate. The RO should clearly explain to the veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the veteran responds, the RO should assist her in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify her and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, or the time period for the veteran's response has expired, the RO should arrange for the veteran to undergo VA genitourinary and orthopedic examinations, by appropriate physicians, at a VA medical facility. The entire claims file, to include a complete copy of the REMAND, must be made available to each physician designated to the examine the veteran, and each report of examination should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail. Each physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed (typewritten) report. The genitourinary examiner should provide an opinion as whether it is at least as likely as not (i.e., there is a 50 percent or more probability) that the veteran's hemorrhoids is medically related to service, to include the hemorrhoids noted therein. The orthopedic examiner should specifically identify all disability/ies affecting each foot. With respect to each such diagnosed disability, the physician should provide an opinion as whether it is at least as likely as not (i.e., there is a 50 percent or more probability) that the disability is medically related to service, to include the complaints, problems, and/or diagnoses noted therein. 4. If the veteran fails to report to any scheduled examination(s), the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination(s) sent to the veteran by the pertinent VA medical facility. 5. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the claims for service connection for hemorrhoids and for bilateral foot disabilities in light of all pertinent evidence and legal authority. 7. If any benefits sought on appeal remain denied, the RO must furnish to the veteran and her representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but she may furnish additional evidence and argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs