Citation Nr: 0827727 Decision Date: 08/15/08 Archive Date: 08/22/08 DOCKET NO. 07-02 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 50 percent for coccidioidomycosis (also known as Valley Fever). REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD B.R. Mullins, Associate Counsel INTRODUCTION The veteran had active service from November 2000 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs Regional Office (RO) in Waco, Texas, granting a disability evaluation of 50 percent. FINDING OF FACT The veteran's coccidioidomycosis requires suppressive therapy and is manifested by minimal symptoms such as intermittent fever, occasional night sweats, and temporary weight loss; it is not manifested by massive hemoptysis or other persistent symptoms. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for the service-connected coccidioidomycosis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124, Diagnostic Code 6835 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The veteran's claim for a disability rating in excess of 50 percent for service-connected coccidioidomycosis arises from his continued disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. As to VA's duty to assist, VA has associated with the claims folder the veteran's private medical records, his service medical records, and in June 2005 and May 2006, the veteran was afforded formal VA examinations. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2007). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2007). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Coccidioidomycosis is rated under Diagnostic Code 6837 as a mycotic lung disease. All mycotic lung diseases are rated as follows: A 100 percent disability evaluation is warranted for chronic pulmonary mycosis with persistent fever, weight loss, night sweats, or massive hemoptysis. A 50 percent disability evaluation is warranted for chronic pulmonary mycosis requiring suppressive therapy with no more than minimal symptoms such as occasional minor hemoptysis or productive cough. A 30 percent disability evaluation is warranted for chronic pulmonary mycosis with minimal symptoms such as occasional minor hemoptysis or productive cough. 38 C.F.R. § 4.97. Facts and Analysis The veteran was diagnosed with coccidioidomycosis in November 2003. Coccidioidomycosis is a respiratory infection caused by the inhalation of fungal spores. Dorland's Illustrated Medical Dictionary 384 (31st ed. 2007). In the veteran's case, his infection progressed into his lower back as well. The veteran then underwent two surgeries of the spine; one to remove the contaminated tissue and another to insert metal rods to fuse the spine. The spine residuals are separately rated and not at issue here. VA received the veteran's claim of service connection for coccidioidomycosis in November 2004. Subsequently, in August 2005, the veteran was granted service connection and assigned a disability evaluation of 30 percent. The veteran filed a claim for an increased rating, which was granted in June 2006, and the veteran's disability evaluation was increased to 50 percent. The veteran again filed a claim for an increased rating, seeking the next-higher disability rating of 100 percent. However, upon review of the evidence of record, a disability rating in excess of 50 percent is not warranted at anytime since the veteran filed his claim. Since November 2003, the veteran has been taking medication to suppress his coccidioidomycosis. According to the veteran's May 2006 VA examination, the veteran was taking Diflucan to suppress his symptoms, and would have to continue taking this medication for several more years. An October 2006 private medical report notes that the veteran is taking Itraconazole, rather than Diflucan. August 2005, November 2005, July 2006, and March 2006 private medical reports note that the veteran suffers from occasional night sweats. The March 2006 medical report notes that the veteran experiences night sweats approximately 1 to 2 times per month. A May 2006 VA examination also notes the presence of night sweats, occurring once a month and lasting for two nights. However, according to an October 2006 private medical report, the veteran was now suffering from a dry cough without night sweats. The veteran is also known to experience fevers on occasion. According to a September 2005 private medical note, the veteran has nocturnal fevers up to 101 degrees, but most typically between 99 and 100 degrees. A November 2005 private medical report also notes that the veteran experiences fevers up to 101 degrees "intermittently." According to the veteran's May 2006 VA examination, however, the veteran does not run any fever. Likewise, an October 2006 private medical report noted that the veteran was not running a fever. The May 2006 VA examination also notes that the veteran weighed 130 pounds at the time of examination. According to the VA examiner, the veteran weighed 143 pounds prior to his coccidioidomycosis. A July 2006 private medical report notes that the veteran's weight had increased to 135 pounds. An October 2006 private medical report notes that the veteran's weight was now stable, but there is no notation of the veteran's actual weight as of this time. Finally, the veteran has not been found to have any hemoptysis. In fact, according to the May 2006 VA examination, the veteran has no difficulty with cough or chest pain. An October 2006 private medical report does note that the veteran complained of 2 episodes of bilateral upper chest pain, but the examiner noted that it was accompanied by a dry cough, and hemoptysis was not noted. The veteran is currently rated as 50 percent disabled according to Diagnostic Code 6835. The next-higher disability rating of 100 percent requires chronic pulmonary mycosis with persistent fever, weight loss, night sweats, or massive hemoptysis. Based on the above evidence, the Board finds that the veteran's symptomatology is more closely reflected by a disability rating of 50 percent rather than 100 percent. The veteran's fever has been described as "intermittent" and the evidence indicates that the veteran experiences night sweats on average one to two times per month. Further, while the veteran's weight did temporarily drop by approximately 15 pounds, his weight has since increased and is now found to be stable. Finally, there is no indication from the medical evidence of record that the veteran has experienced a single episode of hemoptysis. The above evidence simply does not warrant a 100 percent disability rating. Diagnostic Code 6835 uses the terms "persistent" and "massive" in the criteria for a 100 percent disability rating. The criteria for a 50 percent disability rating, on the other hand, refer to "minimal" and "occasional" symptoms. The veteran's occasional and episodic respiratory symptoms, such as fever and night sweats, do not approximate the disability picture envisioned for a 100 percent disability rating under Diagnostic Code 6835. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether a staged rating is appropriate. However, in the present case, the veteran's symptoms remained constant throughout the course of the period of the appeal, and as such, staged ratings are not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The veteran's claim of entitlement to a disability rating in excess of 50 percent for service- connected coccidioidomycosis must be denied. Other Criteria and Extraschedular Rating The potential application of various provisions of Title 38 of the Code of Federal Regulations (2007) have been considered whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991), including the provisions of 38 C.F.R. § 3.321(b)(1) (2007). The Board finds that the evidence of record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2007). In this regard, the Board finds that there has been no showing by the veteran that this service-connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule. In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a disability rating in excess of 50 percent for service-connected coccidioidomycosis is denied. ____________________________________________ C. R. OLSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs