Citation Nr: 0814728 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 03-17 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES Entitlement to a rating in excess of 10 percent for hypertension. Entitlement to a rating in excess of 30 percent for sarcoidosis. Entitlement to a rating in excess of 50 percent for vascular headaches. REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from September 1979 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. When the case was last before the Board in May 2006, it was remanded for additional development. Subsequently, in a January 2008 rating decision, the Appeals Management Center (AMC) granted an increased rating of 50 percent for vascular headaches, effective the date of the claim for an increased rating, and granted an increased rating of 30 percent for sarcoidosis, also effective the date of the claim for increase. FINDINGS OF FACT 1. The veteran's hypertension is not manifested by diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. 2. The veteran's sarcoidosis is presently inactive and the evidence fails to show any current treatment with corticosteroids. 3. The veteran's headaches occur on average of two to three times per month, occasionally lasting two to three days, but do not result in marked interference with employment, and pulmonary function studies reveal findings in excess of 90 percent predicted. CONCLUSIONS OF LAW 1. The requirements for a rating in excess of 10 percent for hypertension are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2001); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). 2. The criteria for an evaluation in excess of 30 percent for sarcoidosis have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2007). 3. The criteria for an evaluation in excess of 50 percent for vascular headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence she has in her possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, 487 F.3d 881. In this case, in letters dated in April 2002 and September 2004, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate a claim, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence she has in her possession that pertains to the claim. A June 2006 letter advised the veteran of the types of evidence to submit, such as statements from her doctor, statements from other individuals describing their observations, or her own statement describing the symptoms, frequency, severity and additional disablement caused by her disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In addition, the June 2006 letter advised the veteran of the type of evidence needed to establish a disability rating, including evidence addressing the impact of her condition on employment and the severity and duration of her symptoms, and of the evidence the needed to establish an effective date. Id. The veteran was provided with the rating criteria to establish disability ratings for her disabilities in the June 2003 statement of the case and the November 2005 supplemental statement of the case. The claim was last readjudicated in January 2008. Id. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service treatment records and post-service medical records and examination reports. Moreover, in a correspondence received by the AMC in February 2008, the veteran indicated that she had no other relevant information or evidence to submit to substantiate her claims. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. Additionally, the evidence obtained during the course of the appeal resulted in increased ratings in the evaluation for migraine headaches and sarcoidosis, effective back to the date of claim for increase. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the veteran. See Sanders, 487 F.3d 881. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. I. Hypertension The veteran is currently in receipt of a 10 percent rating for her hypertension, under 38 C.F.R. § 4.104, Diagnostic Code 7101, which provides for diastolic pressure predominantly 100 mm or more, or systolic pressure predominantly 160 mm or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 mm or more who requires continuous medication for control. A 20 percent rating is warranted if diastolic pressure is predominantly 110 mm or more, or systolic pressure is predominantly 200 mm or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). The private and VA medical records reveal the veteran's blood pressure fluctuating over the course of the appeal, with several occasions of diastolic pressure being 110 or over. In this regard, diastolic readings of 110 mm or more were noted in January, April, and June 2003, May 2005, October and December 2005, January 2006, and February 2006. However, the majority of the approximately 39 readings revealed diastolic pressure less than 110 mm. Similarly, the veteran had only four blood pressure reading where systolic pressure was 200 mm or more; the remainder of the readings were less, with the majority ranging from 150 to 170 mm. While the veteran's blood pressure readings have varied over the course of the appeal, there is no point during the course of the appeal where her readings were predominantly 110 mm or more diastolic or 200 mm systolic. Thus, her hypertension symptomatology does not more nearly approximate the criteria for a 20 percent rating requirements. II. Headaches The veteran's headache disability is currently assigned a 50 percent rating, the highest schedular rating under 38 C.F.R. § 4.124a, Diagnostic Code 8100, which provides that migraine headaches are rated based upon their frequency and severity. Under that code, a 50 percent evaluation is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. As the veteran is currently in receipt of the maximum schedular rating for her headaches, the Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). The veteran has not required frequent hospitalization for her headaches and the manifestations of such are more than adequately addressed by the assigned schedular evaluation. In this regard, on her April 2005 VA examination, the veteran reported that Fiorinal almost always relieves her headache symptoms within a day, although they occasionally last as long as 2 or 3 days, and that they occur on average of two times per month. Such findings are contemplated by the 50 percent evaluation assigned. There is nothing in the record to distinguish her case from the cases of numerous other veterans who are subject to the schedular rating criteria for the same disability. Therefore, referral of this case for extra- schedular consideration is not in order. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). III. Sarcoidosis The veteran's sarcoidosis is rated under Diagnostic Code 6846. Under this code, sarcoidosis with chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment warrants a 0 percent rating. Pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids warrants a 30 percent rating. Pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control warrants a 60 percent rating. The condition can alternatively be rated as chronic bronchitis. Chronic bronchitis warrants a 10 percent rating where pulmonary function studies reveal FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. A 30 percent rating is warranted where studies reveal FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 60 percent rating is warranted where FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55- percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). In this case, the May 2002, April 2005, and March 2007 VA examinations reveal no clinical findings of sarcoidosis. The veteran did complain of shortness of breath on heavy exertion at the May 2002 examination. It was noted she was on prednisone in service for treatment of sarcoidosis, but has not been treated with such since that time. Pulmonary function studies from March 2007 revealed an FVC of 97 percent predicted, FEV1 of 90 percent predicted, FEV1/FVC of 92 percent predicted. Such results fail to reflect disability at even a compensable level. Moreover, a CT scan in February 2007 revealed no findings of chronic obstructive pulmonary disease or sarcoid. Review of the VA outpatient treatment reports reveals that the veteran's sarcoidosis is inactive. The records do reveal treatment for an acute upper respiratory infection in January 2006. However, as noted above, there is no evidence of chronic, active disease noted thereafter, and no evidence of active sarcoidosis. Furthermore, notwithstanding the AMC's award of a 30 percent rating in the January 2008 rating decision under the provisions of Diagnostic Code 6846, there is no evidence that the veteran has been prescribed corticosteroids for treatment of sarcoidosis since her discharge from service, and the evidence in conjunction with this appeal notes that sarcoidosis is inactive and not clinically shown. Thus, there is no basis upon which to award an evaluation in excess of 30 percent. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to a rating in excess of 10 percent for hypertension is denied. Entitlement to a rating in excess of 30 percent for sarcoidosis is denied. Entitlement to a rating in excess of 50 percent for headaches is denied. ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs