Citation Nr: 0812021 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-06 426A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for sleep apnea. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from October 1981 to September 1984. In addition, he had approximately 13 years and 7 months of prior active service. In December 2003, the Board of Veterans' Appeals (Board) granted service connection for sleep apnea, secondary to the service-connected sinusitis based on aggravation. In February 2004, the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida effectuated the Board's decision. In so doing, the RO assigned a noncompensable evaluation for sleep apnea, effective from July 5, 2001. Following receipt of notification of that determination, the veteran perfected a timely appeal with respect to the noncompensable rating initially assigned to his service-connected sleep apnea. FINDING OF FACT The veteran's sleep apnea has consistently required the use of a nasal continuous positive airway pressure (CPAP) mask. At no time during the current appeal, however, has this disorder resulted in chronic respiratory failure, carbon dioxide retention, or cor pulmonale or required a tracheostomy. CONCLUSION OF LAW The criteria for an initial compensable rating for the service-connected sleep apnea have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.310, 4.97, Diagnostic Code 6847 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties To Notify And To Assist On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, & 5126 (West 2002 & Supp. 2006)). The VCAA imposes obligations on VA in terms of its duty to notify and to assist claimants. Upon receipt of a complete or substantially complete application for benefits, VA is ordinarily required to notify the claimant and his/her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide and must ask the claimant to provide any evidence in his/her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). VCAA notice is not required in every case, however. The United States Court of Appeals for Veterans Claims (Court) recently held, for example, that such notice is not required under circumstances where a claim for service connection is granted, a rating and effective date are assigned, and the claimant files an appeal as to the initially assigned rating. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006) (in which the Court held that, "[i]n cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled"). Rather, under those circumstances, the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103 are for application. Id. Here, the veteran's increased rating claim essentially falls within this fact pattern. Following receipt of notification of the February 2004 grant of service connection for sleep apnea, the veteran perfected a timely appeal of the initially assigned noncompensable rating for this service-connected disability. Consequently, no section 5103(a) notice is required for the veteran's increased (compensable) rating claim. As section 5103(a) no longer applies to the veteran's appeal-e.g., his increased (compensable) rating claim-the additional notification provisions for increased rating claims recently set forth by the Court are not applicable in the present case. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). As for the provisions of 38 U.S.C.A. §§ 5104 & 7105 and 38 C.F.R. § 3.103, the record shows that the veteran has been provided with various communications [including the February 2004 notification of the rating decision dated earlier that month, a March 2005 statement of the case (SOC), and supplemental statements of the case (SSOCs) issued in October 2007 and December 2007] that contain notice of VA's rating communication, his appellate rights, a summary of relevant evidence, citations to applicable law (diagnostic code), and a discussion of the reasons for the decision made by the agency of original jurisdiction. In short, the procedural requirements of the law have been satisfied. No further due process development is required. Additionally, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his/her claim. 38 U.S.C.A. §§ 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2007). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his/her claim, whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007). In the present case, the Board finds that the duty to assist provisions of the VCAA have been fulfilled with respect to the increased (compensable) rating issue on appeal. All relevant treatment records adequately identified by the veteran have been obtained and associated with his claims folder. He has been accorded a pertinent examination. There is no suggestion on the current record that additional evidence, relevant to this matter, exists and can be procured. Consequently, the Board concludes that no further evidentiary development of the veteran's increased (compensable) rating claim is required. Analysis In December 2003, the Board granted service connection for sleep apnea, as secondary to the service-connected sinusitis, on the basis of aggravation. In February 2004, the RO effectuated the Board's decision. In so doing, the RO granted service connection for sleep apnea associated with sinusitis and assigned a noncompensable evaluation, effective from July 5, 2001. As the present appeal arises from an initial rating decision which, in essence, established service connection and assigned an initial disability rating, the entire period is considered for the possibility of staged ratings. In other words, consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2007). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (2007). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2007). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. §§ 4.2, 4.3 (2007). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). According to the applicable rating criteria, sleep apnea which is asymptomatic but manifested by documented sleep disorder breathing will result in the assignment of a noncompensable evaluation. The next higher evaluation of 30 percent requires evidence of persistent day-time hypersomnolence. A 50 percent rating will be awarded with evidence of the need for a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent evaluation requires evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or the need for a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847 (2007). Throughout the appeal in the present case, the veteran has asserted that his service-connected sleep apnea is more severe than the current noncompensable rating reflects. In particular, he maintains that, as a result of this disorder, he is unable to sleep, experiences limited relief of pertinent symptoms, and has had trouble adjusting to the prescribed CPAP mask. According to the relevant medical evidence of record, mild obstructive sleep apnea was first shown by a December 1999 sleep study. In August 2000, the veteran began using a CPAP mask. Despite use of this device, he reported continued decreased daytime somnolence in November 2000. At a VA respiratory examination conducted in February 2001, the examiner determined that, while the veteran clearly had obstructive sleep apnea, he exhibited no signs or symptoms of sinusitis. Subsequent medical records, however, indicate that the veteran's sinusitis had worsened. In particular, medication that the veteran had been prescribed for his chronic sinusitis gave him only intermittent relief, and he continued to experience problems with upper airway obstruction, including difficulty breathing. In June 2001, a treating VA physician expressed his opinion that "it is as likely as not that the chronic sinusitis, if not the total cause, contributes significantly to . . . [the veteran's] obstructive sleep apnea." In August 2002, the veteran underwent an uvulopalatopharyngoplasty and a tonsillectomy. Although he thereafter continued to experience some problems with his CPAP mask, he adjusted to this device. He has described continued daytime somnolence. As the Board has previously discussed in this decision, the grant of service connection for the veteran's sleep apnea was based upon aggravation of that disorder by his service-connected sinusitis. The amount of compensation awarded for his now service-connected sleep apnea must, therefore, be computed by deducting the baseline level of severity of this disability (as well as any increase in severity due to the natural progress of the disability) from the current level of severity of the disorder. The baseline level of severity of the veteran's sleep apnea is determined through medical evidence created before the onset of the aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the sleep apnea. 38 C.F.R. § 3.310(b) (2007). A May 2007 addendum to an April 2007 VA examination reflects that the veteran would still need a CPAP regardless of the effects the sinusitis has on his sleep apnea. It is clear from the clinical evidence that the baseline level of severity of the veteran's sleep apnea (prior to its aggravation by the service-connected sinusitis) supports a 50 percent rating. However, at no time has his sleep apnea resulted in chronic respiratory failure, carbon dioxide retention, or cor pulmonale or required a tracheostomy. The criteria for a rating in excess of a 50 percent rating for sleep apnea are not met. 38 C.F.R. § 4.97, Diagnostic Code 6847. The Board is sympathetic to the veteran's concerns that, despite his continuous use of a CPAP mask since August 2000, his service-connected sleep apnea remains evaluated as noncompensably disabling. Significantly, however, the Board is bound by the regulations, which specifically state that, when a grant of service connection for one disability is based upon aggravation of that disability by a second (and service-connected) disorder, the amount of compensation awarded for the newly service-connected disability must be computed by deducting the baseline level of severity of the disability (as well as any increase in severity due to the natural progress of the disability) from the current level of severity of the disability. 38 C.F.R. § 3.310(b). In the present case, the baseline and current levels of severity of the veteran's now service-connected sleep apnea is 50 percent. Subtracting the 50 percent baseline rating from the 50 percent current evaluation mandates a noncompensable evaluation for this disability. Moreover, the Board does not find that consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) is warranted for any time during the current appeal. That provision provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria, as shown by evidence showing that the disability at issue causes marked interference with employment, or has in the past or continues to require frequent periods of hospitalization rendering impractical the use of the regular schedular standards. Id. Importantly, at no time during the current appeal has the veteran's service-connected sleep apnea required hospitalization or resulted in marked interference with employment. 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned therein. What the veteran has not shown in this case is that his service-connected sleep apnea has resulted in unusual disability or impairment that rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate at any time during the current appeal. Accordingly, the Board concludes that consideration of the provisions set forth at 38 C.F.R. § 3.321(b)(1) is not warranted for the veteran's service-connected sleep apnea for any time during the current appeal. ORDER An initial compensable rating for sleep apnea is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs