Citation Nr: 0812528 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 03-34 141A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to restoration of a 60 percent rating for a respiratory disorder from July 1, 2003, to August 20, 2007. 2. Entitlement to a disability rating higher than 60 percent for a respiratory disorder. 3. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The veteran had active service from October 1968 to August 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston- Salem, North Carolina. In March 2006, the Board remanded this case for additional evidentiary development. It has since been returned to the Board for further appellate action. In March 2006, the Board referred the issue of entitlement to a TDIU to the RO. It does not appear that any additional action on this issue has been taken since then. Although a total rating is being granted herein, it is not being made effective for the entire period on appeal. Therefore, the TDIU issue has not been rendered moot. The Board acknowledges the arguments of the veteran's representative in the February 2008 presentation that the Board has jurisdiction over the issue of TDIU. According to the VA General Counsel, the question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim. If the veteran asserts entitlement to a TDIU rating based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision, the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a). See VAOGCPREC 6-96. VA General Counsel opinions are binding on the Board. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 14.507 (2007). Consideration of TDIU in this case would necessarily involve consideration of only the disability on appeal. Therefore, the Board concludes, based on the VA General Counsel Opinion referred to above, that it does have jurisdiction over the issue of entitlement to TDIU. The issue of entitlement to TDIU is addressed in the REMAND that follows the order section of this decision. FINDINGS OF FACT 1. At the time of the April 2003 rating reduction, the veteran's respiratory disability had not improved. 2. As of August 23, 2007, the veteran has required outpatient oxygen therapy for his respiratory disability. CONCLUSIONS OF LAW 1. The 60 percent rating for a respiratory disability was not properly reduced. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105, 3.344, 4.97, Diagnostic Codes 6600, 6847 (2007). 2. The criteria for a 100 percent rating for a respiratory disability are met effective August 23, 2007, but are not met prior to then. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6600 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that his respiratory disability is more than 60 percent disabling. The Board will initially discuss certain preliminary matters, and will then address the pertinent law and regulations and their application to the facts and evidence. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the veteran provide any evidence in the claimant's possession that pertains to the claim. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). As the veteran's rating restoration claim is being granted in full, the Board will not include a discussion of the RO's compliance with the Veterans Claims Assistance Act of 2000 (VCAA) at this time, as any failure of VA to properly implement the VCAA has necessarily been nonprejudicial with respect to this claim. With respect to the increased rating claim, that claim is only being granted for a portion of the period on appeal. The Court has recently provided guidance with respect to the notice that is necessary in increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Adequate VCAA notice in an increased rating claim must inform the claimant that he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; and that, if an increase in disability is found, a disability rating will be determined by applying relevant Diagnostic Codes. If the claimant is rated under a Diagnostic Code that contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability, the notice letter must provide at least general notice of that requirement. The notice letter must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. In this case, a May 2006 letter informed the veteran that he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the his employment and daily life. It also informed him to submit any pertinent evidence in his possession and provided appropriate notice with respect to the effective-date element of the claim. It also included information on how VA determines the disability rating by use of the rating schedule, and provided examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain), to include treatment records, Social Security determinations, statements from employers concerning the impact of the disability on the veteran's employment, and statements from persons concerning their observations of how the disability has affected the veteran. It also informed the veteran of the assistance that VA would provide to obtain evidence on his behalf. This is not a case in which a noticeable worsening or increase in severity of the disability would not establish the veteran's entitlement to an increased rating. In any event, the veteran was provided the specific criteria for rating the disability in the Statement of the Case. Although the veteran was not provided adequate VCAA notice until after the initial adjuration of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and he receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency would have been different had appropriate VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim.) The Board also notes that the veteran has been afforded appropriate VA examinations and service medical records and pertinent VA medical records have been obtained. Neither the veteran nor his representative has identified any outstanding evidence, to include medical records, that could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence. In sum, the Board is satisfied that any procedural errors in the development and consideration of the claim by the originating agency were insignificant and non prejudicial to the veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). 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. §§ 3.321(a), 4.1 (2007). Under Diagnostic Code 6847, which governs ratings for sarcoidosis, a 100 percent rating is for assignment with cor pulmonale; cardiac involvement with congestive heart failure; or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. A 60 percent rating requires pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control. A 30 percent rating is warranted where there is pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids. Diagnostic Code 6847 also provides that active disease or residuals can alternatively be rated as chronic bronchitis under Diagnostic Code 6600. Under Diagnostic Code 6600, respiratory impairment warrants a 10 percent evaluation where there is FEV-1 of 71- to 80- percent predicted; FEV-1/FVC is 71 to 80 percent; or DLCO (SB) is 66 to 80 percent predicted. A 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted; FEV-1/FVC of 56 to 70 percent; or DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation is warranted for FEV-1 of 40 to 55 percent predicted; FEV-1/FVC of 40 to 55 percent; DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardio respiratory limit). A 100 percent rating is available where FEV-1 is less than 40 percent of predicted value; FEV-1/FVC is less than 40 percent; DLCO (SB) is less than 40percent predicted; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); there is cor pulmonale (right heart failure), right ventricular hypertrophy or pulmonary hypertension (shown by Echo or cardiac catheterization); there are episode(s) of acute respiratory failure; there is a requirement for outpatient oxygen therapy. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2007). When reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e) (2007). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a) (2007). However, the provisions of 38 C.F.R. § 3.344(c) specify that the above considerations are required for ratings which have continued for long periods at the same level (five years or more), and that they do not apply to disabilities which have not become stabilized and are likely to improve. Therefore, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a reduction in rating. 38 C.F.R. § 3.344. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Restoration In the case at hand, a 60 percent rating for the respiratory disability was in effect from December 28, 1998, to July 1, 2003. Since that period is less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) regarding stabilization of disability ratings do not apply. . The veteran was granted a 60 percent evaluation in March 1999 (increased from zero percent), based on the results of pulmonary function testing conducted for a October 1998 VA examination, which showed that the veteran had "severe" pulmonary insufficiency. Testing in October 1998 showed an FVC of 53 percent predicted; FEV1 of 48 percent predicted; and FEV1/FVC of 77, or 74 percent predicted. However, on VA examination in August 2002, the veteran had sarcoidosis by history only. Pulmonary function testing indicated FVC of 53 percent predicted, FEV1 of 50 percent predicted, and FEV1/FVC of 82.4. In a January 2003 rating decision, the RO proposed to reduce the evaluation for the veteran's sarcoidosis to noncompensable; the veteran was informed of the proposal by letter dated in February 2003, and was afforded a period of 60 days in which to submit additional evidence. The RO received additional VA treatment records dated from April 2002 to February 2003, and by rating decision dated in April 2003, the evaluation was reduced to 10 percent, effective July 1, 2003. As discussed above, a veteran's disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. §1155; 38 C.F.R. § 3.344. After reviewing the record, the Board finds that the evidence of record at the time of the April 2003 rating decision did not establish that the veteran's service-connected respiratory disability had improved to the extent that it was no longer 60 percent disabling. The January 2003 proposal to reduce the assigned rating was based on a report of VA examination in August 2002. The Board observes that the August 2002 pulmonary function test results were not significantly different from those reported in October 1998. Moreover, the August 2002 results for FEV1 of 50 percent predicted meet the criteria established for the 60 percent level under Diagnostic Code 6600. The criteria for a 60 percent rating are stated in the disjunctive; therefore, evidence that is deemed sufficient to establish any one of the criteria is sufficient to warrant a 60 percent rating. See Johnson v. Brown, 7 Vet. App. 95 (1994). Additional pulmonary function testing was conducted in November 2002, at the veteran's request, after he received the proposed reduction. These results were markedly better than the August 2002 results, with FEV-1 of 72 percent predicted and FEV-1/FVC of 101 percent predicted. However, in the Board's view, these results do not clearly establish or disclose an improvement in the veteran's condition. The temporal proximity of the August 2002 and November 2002 results indicates that they essentially reflect two conflicting views of the veteran's condition during the same time period rather than demonstrating a true change in severity. As such, the Board is presented with a conflict in the evidence. One piece of evidence shows continued entitlement to a 60 percent rating, while another shows that a reduction is warranted. The Board also observes that neither the August 2002 examiner nor the November 2002 examiner stated that the veteran's claims file was reviewed. See Tucker v. Derwinski, 2 Vet. App. 201, 203 (1992) (reversing VA's reduction of an appellant's schedular rating based on an examination report that did not include a review of the claims file by the examiner). The Board has found no reason to favor the November 2002 results over the August 2002 results. Accordingly, the Board concludes that the evidence before the RO at the time of the April 2003 rating decision did not establish that the veteran's respiratory disability had improved to the extent that a 60 percent rating was no longer warranted. Consequently, restoration of the 60 percent rating for a respiratory disability for the period from July 1, 2003, to August 20, 2007 is in order. Increased Rating In this case, records from the VA Medical Center in Durham, North Carolina from August 2007 and September 2007 show that the veteran has been prescribed home oxygen therapy due to sarcoidosis and COPD. Therefore, one of the requirements for the 100 percent rating are met. The criteria for a 100 percent rating are stated in the disjunctive; therefore evidence that is deemed sufficient to establish any one of the criteria is sufficient to warrant a 100 percent rating. See Johnson, 7 Vet. App. 95. With respect to the effective date of the increase, the Board notes that the August 23, 2007, outpatient progress note is the first reference to the need for outpatient oxygen therapy. The examining physician referred to the need for oxygen therapy as a prospective requirement, writing that the veteran "will need home oxygen." A letter dated September 28, 2007, from a VA physician to the veteran's electricity provider requests that the veteran be added to the list of medical priority customers due to his prescribed continuous oxygen. Accordingly, the Board concludes that a 100 percent rating is warranted on and after August 23, 2007. In sum, the criteria for a 100 percent rating for a respiratory disability are met as of August 23, 2007. The Board notes that none of the medical evidence for the period prior to August 23, 2007, shows any of the findings required to support a rating in excess of 60 percent. Accordingly, a rating in excess of 60 percent is not warranted during the earlier period. ORDER Entitlement to restoration of a 60 percent rating from July 1, 2003, to August 20, 2007, is granted, subject to the criteria applicable to the payment of monetary benefits. The Board having determined that the respiratory disability warrants a 60 percent rating prior to August 23, 2007, and a 100 percent rating beginning August 23, 2007, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. REMAND The Board notes that additional pertinent evidence has been submitted since the most recent adjudication of the issue of entitlement to TDIU in February 2004. The veteran has not waived his right to initial consideration of that evidence by the originating agency. Moreover, since this issue was raised in the argument recently submitted by the veteran's representative, it is not clear that all available evidence pertinent this matter has been obtained. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should send the veteran a letter requesting him to provide any pertinent evidence in his possession and any outstanding medical records pertaining to his entitlement to a TDIU prior to August 23, 2007, or the identifying information and any necessary authorization to enable VA to obtain such records on his behalf. 2. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. If the RO or the AMC is unsuccessful in its efforts to obtain any such evidence, it should so inform the veteran and his representative and request them to submit the outstanding evidence. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the veteran's claim of entitlement to a TDIU prior to August 23, 2007. The adjudication should include both schedular and extra-schedular consideration. If the benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be provided a supplemental statement of the case and an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs