Citation Nr: 0121235 Decision Date: 08/21/01 Archive Date: 08/27/01 DOCKET NO. 92-11 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for sarcoidosis. 2. Entitlement to service connection for arthritis. 3. Entitlement to service connection for a liver condition. 4. Entitlement to service connection for a stomach condition. 5. Entitlement to service connection for a neurological condition. 6. Entitlement to service connection for a skin condition, claimed as cysts and nodules. REPRESENTATION Veteran represented by: Mark R. Lippman, Attorney at law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The veteran had active military service from March 1965 to February 1967. By April 1993 decision, the Board of Veterans' Appeals (Board) granted service connection for sarcoidosis. By June 1993 rating decision, the Department of Veterans Affairs (VA) Houston Regional Office (RO) effectuated the Board's grant of service connection for sarcoidosis and assigned it an initial 10 percent rating, effective December 11, 1990. In March 1994, the veteran perfected an appeal with the downstream elements of the effective date and initial disability rating for sarcoidosis. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). By August 1996 decision, the Board granted an earlier effective date of December 31, 1988 for the award of service connection for sarcoidosis. The issue of entitlement to an initial rating in excess of 10 percent for sarcoidosis was remanded for additional development of the evidence. In July 1999, the veteran testified at a Board hearing in Washington, D.C. By September 1999 decision, the Board denied an initial rating in excess of 10 percent for sarcoidosis. The veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (the Court). While the case was pending before the Court, in November 2000, the veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Remand and to Stay Further Proceedings. By November 22, 2000 Order, the Court granted the parties' motion, vacated the Board's September 1999 decision, and remanded the matter for additional action consistent with the November 2000 Joint Motion. In September 1999, the Board observed that by January 1996 rating decision, the RO denied service connection for a skin condition, shingles, a salivary gland condition, an anxiety disorder, diabetes mellitus, an eye disorder, arthritis, a liver condition, a stomach condition, a neurologic condition, and neurosyphilis. The Board determined that a VA Form 646 prepared in connection with the veteran's appeal for an increased rating for sarcoidosis was sufficient to constitute a Notice of Disagreement with the January 1996 rating decision. Because a Statement of the Case addressing these issues had not been issued, the Board remanded the matter for such action. See Manlincon v. West, 12 Vet. App. 238 (1999). The record shows that the RO issued a Statement of the Case on these matters in November 1999. In January 2000, the veteran filed a substantive appeal regarding the issues of service connection for arthritis, a liver condition, a stomach condition, a neurological condition, and "cysts/nodules" (presumably referring to a skin condition). Thus, the additional issues now on appeal are as listed on the cover page above. REMAND In the November 2000 Joint Motion, the parties' noted that, in determining that a rating in excess of 10 percent for sarcoidosis was not warranted, the Board reasoned in its September 1999 decision that: Under the amended criteria, sarcoidosis can also be rated as chronic bronchitis under Diagnostic Code 6600. See 38 C.F.R. § 4.97, Diagnostic Code 6846 (1998). Under those provisions, a 30 percent rating is warranted on showing of FEV-1 of 56 to 70-percent predicted; or FEV-1/FVC of 56 to 70 percent predicted; or DLCO (SB) 56-to 65 percent predicted. In this case, however, none of the pulmonary function tests of record dated since October 7, 1996 have demonstrated that the criteria for an evaluation in excess of 10 percent have been met. Thus, an increased rating is not warranted under Diagnostic Code 6600. However, the parties' noted that in July 8, 1999 correspondence (on Paralyzed Veterans of America letterhead), Craig N. Bash, M.D., a neuro-radiologist, indicated that he had reviewed the veteran's claims folders and noted that "[t]he pateint [sic] has had abnoraml [sic] PFTs (70 FEV 1/FVC on 20 Aug 1998) and abnormal chest x-rays both of which suggest restrictive lung disease." The parties noted that the August 20, 1998 pulmonary function test results cited by Dr. Bash: that is, "70 FEV1/FVC on 20 Aug 1998" - if attributable to the service-connected sarcoidosis, may meet the criteria for an increased evaluation under the new DC 6600, which provides for a 30 percent evaluation for "FEV-1/FVC of 56 to 70 percent." The parties further noted their agreement that "the Board should address whether Dr. Bash's July 8, 1999 letter would warrant an increased rating under Code 6600." The Board has carefully reviewed Dr. Bash's July 1999 letter, as well as the August 20, 1998 VA pulmonary function test report, cited therein. That report reflects a FVC (forced vital capacity) of 76 percent of predicted value; FEV-1 (forced expiratory volume in one second) of 78 percent of predicted value; and FEV-1/FVC of 102 percent of predicted value. It does not reflect, as Dr. Bash indicates in his letter, a FEV-1/FVC of 70 percent predicted. Rather, the report indicates that the veteran's actual FEV-1/FVC value was 72, the predicted value was 70, and the veteran's FEV- 1/FVC was 102 percent of predicted value. Assuming the Board's reading of the August 20, 1998 pulmonary function test is correct, a rating in excess of 10 percent would not be warranted under Diagnostic Code 6600. However, the Court has repeatedly admonished that VA cannot substitute its own judgment or opinion for that of a medical expert. See Colvin v. Derwinski, 1 Vet. App. 761 (1991). In light of the apparent conflict regarding the interpretation of the August 1998 pulmonary function test, the Board finds that additional development of the evidence is necessary. Cf. Kelly v. Brown, 7 Vet. App. 471 (1995). In addition, the Board notes that, during the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000), has been enacted which significantly redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.. See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Due to the change in law brought about by VCAA, a remand in this case is required for compliance with the notice provisions contained therein. VCAA (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). Also, as the RO has not yet considered whether any additional notification or development action is required under VCAA, it would be potentially prejudicial to the veteran if the Board were to proceed to a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). In view of the foregoing, the case is remanded for the following: 1. The veteran should be afforded a VA pulmonary examination to determine the nature and extent of his service- connected sarcoidosis. The claims folders must be made available to the examiner for review prior to the examination. All necessary tests, including pulmonary function testing, should be conducted and the examiner should review the results of all testing prior to completion of the report. Based on the pulmonary function test results, the examiner must report the percentages of predicted values for FEV-1, FEV-1/FVC and the DLCO (SB). See 38 C.F.R. § 4.97, Diagnostic Code 6600. Similarly, the examiner should be requested to interpret the August 20, 1998 pulmonary function test report referenced above to ensure that the results of that test are properly applied to the criteria set forth in the Rating Schedule. The examiner should also assess whether the veteran's service-connected sarcoidosis is manifested by pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids; or pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control; or cor pulmonale, or cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats and weight loss despite treatment. See 38 C.F.R. § 4.97, Code 6846. The examination report must also include a detailed account of all extra-pulmonary manifestations of the veteran's sarcoidosis, if any. In that regard, the examiner should specifically provide an opinion as to whether it is as least as likely as not that the veteran currently has arthritis, a liver condition, a stomach condition, a neurologic condition, or a skin condition, as a residual or secondary to his service-connected sarcoidosis. In rendering such opinion, the examiner should specifically reference Dr. Bash's July 1999 and March 6, 2001 medical evaluations in the claims folders. 2. The RO should then review the claims files to ensure that all of the development requested has been completed. In particular, the RO should review the requested medical report to ensure that it is responsive to and in complete compliance with this remand. If not, the RO should take remedial action. Stegall v. West, 11 Vet. App. 268 (1998). 3. The RO must also review the claims files and ensure that all notification and development action required by VCAA is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are satisfied. Then, the RO should readjudicate the claims. If the benefits sought on appeal remain denied, the veteran and his attorney should be provided an appropriate supplemental statement of the case ans an opportunity to respond. Thereafter, the case should be returned to the Board. The veteran has the right to submit additional evidence and argument on the matters remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims remanded by the Board or the Court for additional development or other appropriate action must be handled expeditiously. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and Statutory Notes). J.F. GOUGH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2000).