Citation Nr: 0812173 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 98-08 951 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Evaluation of sleep apnea, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from November 1952 to November 1956. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a January 1998 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). In May 2006, the Board remanded this case for further evidentiary development, issuance of adequate notice under the Veterans Claims Assistance Act of 2000 (VCAA), and an explanation for the use of various diagnostic codes in this case. During remand status, the RO determined that there was clear and unmistakable error in the January 1998 rating decision, which assigned a 50 percent evaluation for sleep apnea under diagnostic code 6847 effective from April 1990 when there was no available rating criteria for sleep apnea until October 7, 1996, and then later changed the diagnostic code to 8108-6520 assigning a 60 percent evaluation. Pursuant to Board remand, the RO appears to have re-coded the disability. Prior to October 7, 1996, it appears that the appellant's sleep apnea is rated by analogy to stenosis of larynx under Diagnostic Code 6520 at the 60 percent disability level; from October 7, 1996, sleep apnea no longer required rating by analogy and a 60 percent disability rating under Diagnostic Code 6847. As Diagnostic Code 6847 does not provide a 60 percent evaluation, the RO continued the evaluation based upon the prior criteria. See 38 U.S.C.A. § 1155. The Board notes that the appellant failed to report for the most recently scheduled VA examination, requested by the Board's May 2006 remand. The record shows that the appellant is housebound and received in-home primary care. As good cause is shown for the appellant's failure to report for VA examination, and because it appears that the circumstances for his inability to report for an examination are permanent, the claim will be decided on the evidence of record. See 38 C.F.R. § 3.655. We note, historically, that the appellant failed to report for VA examination scheduled for December 2004 due to "severe weather conditions" and transportation problems, and that he developed angina during pulmonary function testing on VA examination in January 2005 examination which required emergency room treatment. Three examinations have been attempted in connection with the current claim. In January 2006, the appellant's representative requested that the Board adjudicate the claim based on the evidence of record in view of the appellant's circumstances. FINDING OF FACT The appellant has obstructive sleep apnea that requires the use of a breathing assistance devise, but without chronic respiratory failure, carbon dioxide retention, cor pulmonale, or requirement for tracheostomy. CONCLUSION OF LAW The criteria for an evaluation in excess of 60 percent for sleep apnea have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.14, 4.97, Diagnostic Codes 6520 (1995), 6520 (2007), 6847 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his/her claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In a letter dated June 2006, VA notified the appellant of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. VA also generally advised the appellant to submit any additional information in his possession supporting of the claim, or to provide VA sufficient information to obtain that evidence on his behalf. VA further notified the appellant of the disability rating and effective date elements of his claim. Specifically, he was informed that, in determining the disability rating, VA considered the nature and symptoms of the condition, the severity and duration of the symptoms, and impact on employment. VA gave examples of the types of evidence the may be submitted to support the claim for increase. The claim was readjudicated by the RO in January 2007. As such, and with consideration the recent Court decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Boards finds that the VCAA notice is adequate as to both content and timing. We note that the appellant is not prejudiced by the late timing of the compliant VCAA notice in view of the subsequent adjudication of the claim. Essentially, the fundamental fairness of the adjudication process has not been compromised. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the appellant in obtaining evidence, scheduling him for VA examinations, seeking a medical opinion as to the severity of his disability, and by affording him the opportunity to give testimony before an RO hearing officer and/or the Board even though he declined to do so. It appears that all known and available records relevant to the issues here on appeal have been obtained and are associated with the claims file, and the appellant does not appear to contend otherwise. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the claimant and that no further action is necessary to meet the requirements of the VCAA. Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. The Court has held that a veteran may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Court has acknowledged, however, that when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different Diagnostic Codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, No. 05- 2424 (U.S. Vet. App. Nov. 19, 2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. We note that, in the instant claim, there is a period of time prior to October 7, 1996, when there were no specific rating criteria for sleep apnea. As such, the condition was rated by analogy to a closely related respiratory disease. See 38 C.F.R. § 4.20 (When an unlisted condition is encountered, it is permissible to rate the condition under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous). Effective October 7, 1996, VA amended the scheduler criteria for rating respiratory disorders, to include Diagnostic Code 6847 (Sleep Apnea Syndrome). The amended code may only be applied as of its effective date. See 38 U.S.C.A. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p) (2005); VAOPGCPREC 3-2000 (Apr. 10, 2000). Generally, where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the liberalizing law or VA issue. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2007). In this case, the RO rated the appellant's sleep apnea under diagnostic codes 6520 (stenosis of the larynx) and 6847 (sleep apnea syndromes). The Board will also consider the regulations available prior to and from October 7, 1996, as applicable. Diagnostic Code 6520 provides a 60 percent rating for FEV-1 of 40- to 55-percent predicted, with Flow-Volume Loop compatible with upper airway obstruction; a 100 percent disability rating is assigned where there is forced expiratory volume in one second (FEV- 1) less than 40 percent of predicted value, with Flow-Volume Loop compatible with upper airway obstruction, or; permanent tracheotomy. 38 C.F.R. § 4.97 (2007). Diagnostic Code 6847 (sleep apnea syndromes) provides a 50 percent disability rating use of a breathing assistance device is required. A 100 percent disability rating is assigned if there is evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale; or a required tracheostomy. See 38 C.F.R. § 4.104 (2007). Prior to October 7, 1996, sleep apnea was rated by analogy to Diagnostic Code 6520 (stenosis of the larynx), which provides a 60 percent evaluation for severe impairment of respiration, dyspnea on slight exertion. Where the condition continuously requires a tracheotomy tube, a 100 percent evaluation is assigned. 38 C.F.R. § 4.97, Diagnostic Code 6520 (1995). In October 1991, there was a report of arterial oxygen desaturation to 59 percent. Letters from the appellant's treating VA physician, Dr. Z, reflect a diagnosis for severe sleep apnea syndrome, which requires treatment with continuous positive airway pressure (CPAP). Stanford University Sleep Disorder Clinic records dated September to December 1991 show severe obstructive sleep apnea with excessive daytime somnolence. Nasal CPAP treatment was strongly encouraged. Questionable narcolepsy was noted. VA medical records dated 1991 to 2001 reflect multiple diagnoses, including severe obstructive sleep apnea. No pulmonary function studies appear to have been conducted during this period. An August 1997 entry shows that the appellant uses a CPAP at night and as needed during the day. A December 1998 entry reflects an impression for sleep apnea with a probable biventricular failure. Report of VA examination dated February 1992 reflects restriction of "N-P and HP" passages due to obesity and the larynx; the impression was obstructive sleep apnea, well- treated with CPAP. Similarly, report of VA examination dated September 1995 shows complaints and findings for sleep apnea treated with CPAP. VA respiratory examination dated July 1998 reflects that the appellant uses CPAP and BIPAP machines at night, and experiences daytime sleepiness and dyspnea. By history, a tracheostomy was recommended, but deferred due to a rash on his neck. Respiratory rate was 30. Trachypnea and shortness of breath with brief ambulation was shown. The appellant was obese, 358 pounds. Sleep apnea was diagnosed. A January 1999 VA treatment note reflects an assessment for possible worsening heart failure, which the examiner stated may be due to multiple reasons, including sleep apnea. The examiner further stated that the appellant could have an element of cor pulmonale. In September 1999, a VA heart examination was conducted. On review of the claims folder, the examiner noted that a chest x-ray showed cardiac enlargement, but that this was probably due to the appellant's inability to take a deep breath. He further noted that echocardiogram revealed no evidence of cardiac enlargement, and normal right-left ventricular size. The examiner stated that the "Echo seems to preclude congestive heart failure" and that June 1998 and March 1999 echocardiograms were unchanged. The diagnoses were profound sleep apnea, history of aortic valve replacement, no evidence of congestive heart failure, and obesity (hypoventilation syndrome). The examiner commented that "If he has been in heart failure, it has not damaged his heart in any way; I suspect it is true cor pulmonale (from Obesity Hypoventilation) if at all." The examiner concluded that there was no relationship between the appellant's sleep apnea and the "very poor diagnosis of congestive heart failure." In a December 1999 addendum to this examination report, the examiner clarified his September 1999 remarks; regarding the presence of cor pulmonale, the examiner stating that "he [the appellant] DOES NOT HAVE IT NOW." On hospital admission in November 1999 for complaints of chest pain and possible myocardial infarction, it was noted that the appellant was on CPAP over night and had no problem with his condition during the admission. On a routine VA follow-up appointment in March 2001, the appellant reported using CPAP for sleep apnea and "doing very well with this." He had no respiratory or pulmonary complaints this day. Subsequently dated VA treatment records show essentially the same. On examination in March 2002 after developing angina, respiratory rate was 18, oxygen saturation was 98 percent on room air. The trachea was midline. May and October 2002 VA treatment notes reflect that the appellant was non-compliant with use of his CPAP and he was counseled to use his CPAP machine every night. A December 2003 entry reflects that the appellant "does not always use his CPAP machine, but uses it as much as possible." A VA chest x-rays dated July 2001, March 2002, October 2002, and July 2004 show no evidence of acute cardiopulmonary disease. VA treatment records dated from 2004 and 2005 continue to show sleep apnea along with multiple other chronic medical problems. A VA emergency room note dated January 2005 reflects that the appellant was admitted after he developed angina during VA pulmonary function testing at the VA Pulmonary Clinic. The assessment was angina secondary to pulmonary function tests. These records reflect that the appellant was receiving home based primary care. A VA medical opinion dated July 2006 was prepared based on a review of the claims folders. It was noted that the appellant repeatedly stated that he was unable to leave home to present for medical examination. As an initial matter, the physician indicated that it was unlikely that the appellant could undergo a pulmonary function test because of his comorbid conditions of heart disease and obesity. Based on his review of the medical record, the physician concluded that the appellant has obstructive sleep apnea without evidence of chronic respiratory failure, carbon dioxide retention, cor pulmonale, or requirement for tracheostomy. It was noted that there is no indication in the record that tracheostomy had been recommended or performed. Given the evidence discussed above, the schedular criteria for a higher evaluation are not met under either the rating provision extant prior to or from October 7, 1996, and the Board finds no basis upon which to assign staged ratings in this case. See Fenderson, supra. As such a uniform 60 percent disability evaluation is warranted. The current version of Diagnostic Code 6520 (stenosis of the larynx) requires evidence of reduced respiratory function to various degrees as measured by forced expiratory volume with upper airway obstruction. As the record indicates, there are no pulmonary function tests that may be considered in this case and, although VA has attempted to obtain results from pulmonary function testing, the appellant has been either unable to attend or perform the necessary testing; moreover, it appears that comorbid medical conditions will permanently preclude him from undergoing that testing. As there is no evidence of FEV-1 less than 40 percent of predicted value, or permanent tracheostomy, an increased evaluation is not warranted under Diagnostic Code 6520 (2007). With respect to Diagnostic Code 6847 (2007), sleep apnea, an evaluation greater than 60 percent requires chronic respiratory failure with carbon dioxide retention or cor pulmonale; alternatively, a higher evaluation is warranted where sleep apnea requires tracheostomy. None of these conditions is shown. Although the appellant reported that a tracheostomy was recommended but deferred because of a skin rash on his neck, the medical evidence shows no finding that a tracheostomy is required. The Board assigns greater probative value to the objective evidence of record, which is silent for required tracheostomy. In regard to cor pulmonale, it is clear that examiners have suspected its presence. However, when actually examined, it has never been proven. The Board concludes that the clinical evidence disclosing the absence of cor pulmonale is more probative than an unsupported medical conclusion or belief (even if provided by a medical professional). Lastly, an increased evaluation is not warranted under the old version of Diagnostic Code 6520 as the evidence shows that he does not require a tracheotomy tube. 38 C.F.R. § 4.97, Diagnostic Code 6520 (1995). Accordingly, the claim is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER An increased evaluation for sleep apnea is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs