Citation Nr: 1012553 Decision Date: 04/02/10 Archive Date: 04/14/10 DOCKET NO. 06-12 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for obstructive sleep apnea. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Pflugner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to February 2005. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. During the pendency of this appeal, the Veteran requested that his case be transferred to the RO in Cleveland, Ohio. FINDING OF FACT The Veteran's sleep apnea was marked by mild periodic limb movements, snoring, and persistent day-time hypersomnolence, but did not require the use of a breathing assistance device. CONCLUSION OF LAW The criteria for an initial disability evaluation in excess 30 percent for obstructive sleep apnea have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.97, Diagnostic Code 6847 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as amended), 3.326(a) (2009). The Veteran's claim of entitlement to an increased evaluation for obstructive sleep apnea arises from his disagreement with the initial evaluation assigned to this disability following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA with respect to this claim. The duty to assist the Veteran has also been satisfied in this case. The RO has obtained all of the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran was also afforded an adequate VA examination during the course of this appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examination took into account the Veteran's prior treatment records and fully described his obstructive sleep apnea, which allowed for the evaluation of the claimed disability to be fully informed. Id. Finally, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, No. 07-1209 (U.S. Sup. Ct. Apr. 21, 2009); 556 U.S. ____ (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2009). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2009). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2009). Consideration of the entire history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The current appeal is based on the assignment of an initial rating for a disability following an initial award of service connection for this disability. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Accordingly, evidence contemporaneous with the claim and the initial rating decision is most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Id. at 126. If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time. Id. Historically, the Veteran served on active duty from September 1984 to February 2005. In May 2005, service connection was granted for obstructive sleep apnea and a 30 percent evaluation was assigned thereto, effective from March 1, 2004. The Veteran perfected an appeal seeking a higher initial evaluation. In November 2008, the Board remanded this claim for further development. Specifically, the Board found that the evidence of record did not include a competent opinion as to whether the Veteran required the use of a breathing assistance device, such as a continuous positive airway pressure (CPAP) machine. As such, the Board remanded the claim in order for the RO to schedule the Veteran to undergo a VA examination. In November 2009, the Veteran underwent a VA examination to assess the severity of the Veteran's service-connected sleep apnea and to ascertain whether the Veteran required the use of a breathing assistance device. Thus, the Board finds that the RO substantially complied with the directives of the November 2008 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 1992, the Veteran's service medical records revealed that he complained of a longstanding history of excessively loud snoring and nasal obstruction. A radiological examination demonstrated that the Veteran's septum was deviated. Although the Veteran's deviated septum was surgically repaired in August 1992, he continued to experience snoring and hypersomnolance. In November 1999, the Veteran underwent a nocturnal polysomnograph. The doctor administering the test, J.K. Kadakia, M.D., rendered a diagnosis of moderate sleep apnea. Dr. Kadakia recommended that the Veteran undergo CPAP titration study, have his upper airways evaluated, and initiate an aggressive exercise and nutrition rehabilitation program. In December 1999, the Veteran underwent a sleep study. During this study, he was tested for compatibility with a CPAP machine. Unfortunately, the Veteran was unable to tolerate the CPAP machine, reporting that it felt as though he was "drowning." As an alternative to using the CPAP machine, it was recommended that he undergo an uvulopalatopharyngoplastic (UPPP) surgery. This surgery was completed in May 2000, but did not alleviate the Veteran's sleep apnea symptoms. In May 2001, the Veteran underwent a second sleep study, which included a polysomnograph. The diagnosis was mild periodic limb movements, primary snoring, and possible upper airway resistant syndrome. It was recommended that the Veteran consider undergoing a CPAP titration study and multiple sleep latency testing to rule out the possibility of a wakefulness disorder, such as narcolepsy. In December 2004, the Veteran underwent a VA general medical examination. He reported that he was diagnosed with sleep apnea, that he underwent UPPP surgery in May 2000, and that he did not use a CPAP machine. The Veteran also reported that he was unsure if he had ongoing sleep apnea symptoms. After a physical examination, the diagnosis was obstructive sleep apnea; the examiner did not address whether the Veteran required the use of a breathing assistance device. In November 2009, the Veteran underwent a VA examination to ascertain the severity of his service-connected sleep apnea and whether he required the use of a breathing assistance device. After reviewing the Veteran's relevant medical history and administering a physical examination, the diagnosis was mild obstructive sleep apnea. The examiner found that the Veteran experienced "daytime sleepiness" as a result of his obstructive sleep apnea. After consulting with a pulmonologist, the examiner opined that use of a CPAP machine was not recommended, but that the Veteran should concentrate on his sleep hygiene. The examiner reported that the pulmonologist also did not recommend that the Veteran use a CPAP machine. A 30 percent rating is warranted for obstructive sleep apnea when the veteran experiences persistent day-time hypersomnolence. A 50 percent rating is warranted when obstructive sleep apnea requires the use of a breathing assistance device such as a CPAP machine. 38 C.F.R. § 4.97, Diagnostic Code 6847. As noted above, an initial evaluation of 30 percent was assigned for the Veteran's service-connected obstructive sleep apnea. As such, in order for an evaluation in excess of 30 percent to be granted, the evidence of record must demonstrate that the Veteran requires the use of a breathing assistance device, such as a CPAP machine, because of his service-connected obstructive sleep apnea. Id. Prior to the grant of service connection for sleep apnea, the evidence of record demonstrated medical recommendations that the Veteran undergo CPAP titration studies and recommendations that he use a CPAP machines. However, at no point during the pendency of this claim did the evidence of record show that a CPAP machine was recommended or demonstrate that the Veteran required the use of a breathing assistance device such as a CPAP machine. See Fenderson, 12 Vet. App. at 126. Further, in November 2009, a VA examiner and a pulmonologist opined that use of a CPAP was not recommended and that the Veteran should concentrate on improving his sleep hygiene. As such, the Board finds that a rating in excess of 30 percent for the Veteran's service- connected obstructive sleep apnea is not warranted at any point during the pendency of this appeal. Id. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 4.20, 4.27 (2009). However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, a task performed either by the RO or the Board. Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993)("[R]ating [S]chedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability with the established criteria found in the Rating Schedule for that disability. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. The Board finds that the Veteran's disability picture is not so unusual or exceptional in nature as to render the 30 percent rating inadequate. The Veteran's service-connected obstructive sleep apnea is evaluated as disability of the respiratory system, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Id., see also 38 C.F.R. § 4.97, Diagnostic Code 6847. The Veteran's service-connected obstructive sleep apnea is manifested by mild periodic limb movements, snoring, and persistent day- time hypersomnolence, but the Veteran did not require the use of a breathing assistance device. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are congruent with the disability picture represented by a 30 percent disability rating. A rating in excess of 30 percent is provided for certain manifestations of obstructive sleep apnea, but the medical evidence demonstrates that those manifestations are not present in this case. The criteria for a 30 percent rating reasonably describe the Veteran's disability level and symptomatology and, therefore, a schedular evaluation is adequate and no referral is required. See 38 C.F.R. § 4.97, Diagnostic Codes 6847; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Thus, based on the evidence of record, the Board finds that the Veteran's disability picture cannot be characterized as an exceptional case so as to render the schedular evaluation inadequate. The threshold determination for a referral for extraschedular consideration was not met and, consequently, the Board finds that a referral for an extraschedular rating is not warranted. Thun, 22 Vet. App. at 115. Finally, in reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against an initial evaluation in excess of 30 percent at any point during the pendency of this appeal, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); see also Fenderson, 12 Vet. App. at 126. ORDER An initial evaluation in excess of 30 percent for obstructive sleep apnea is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs