Citation Nr: 1315960 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 04-16 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Propriety of the reduction in the rating for service-connected sarcoidosis, from 30 percent to 0 percent, effective October 1, 2003. 2. Entitlement to an increased rating for sarcoidosis, currently rated 30 percent disabling. 3. Entitlement to service connection for a bilateral hand disorder, to include as secondary to service-connected sarcoidosis. 4. Entitlement to service connection for heart disorder, to include coronary artery disease or cardiac sarcoid, to include as secondary to service-connected sarcoidosis. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to August 1971. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2003 and May 2006 rating decisions rendered by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2009, the Veteran testified at a Board hearing before the undersigned at the RO; a transcript of that hearing is of record. These matters were remanded by the Board in October 2011 for further development. The issues of entitlement to an increased rating for sarcoidosis; entitlement to service connection for a bilateral hand and heart disorders, to include as secondary to service-connected sarcoidosis; and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In April 2002, the RO granted a 30 percent for sarcoidosis, effective July 11, 2001, which was based on March 2002 pulmonary function test (PFT) values associated with a March 2002 VA examination. 2. A November 2002 VA examination, after reviewing the March 2002 PFT values, and without conducted a new PFT, determined that there was "no evidence of sarcoidosis at this time." 3. A February 2003 private medical opinion from Dr. R. D. Mullins noted that he had treated the Veteran for many years for "breathing problems" and that it was his opinion was that these problems "are most likely related to sarcoidosis." 4. By a rating decision dated in June 2003, and after proper notice of the action, the RO reduced the rating assigned to the Veteran's sarcoidosis from 30 percent to 10 percent. 5. Resolving all doubt in the Veteran's favor, the competent and credible evidence fails to establish improvement of the sarcoidosis disability here at issue under the ordinary conditions of life and work. CONCLUSION OF LAW The reduction in the evaluation for sarcoidosis, from 30 to 0 percent, was not proper. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 4.17a, Diagnostic Code 6846-6600 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In November 1971, the RO granted service connection for sarcoidosis and a noncompensable disability evaluation was assigned. In April 2002, the RO granted an increased rating, to 30 percent for sarcoidosis, effective July 11, 2001. The 30 percent rating was based on March 2002 pulmonary function test (PFT) values associated with a March 2002 VA examination. Subsequently, the Veteran filed claims for secondary service connection. A November 2002 VA examination for the purpose of determining the etiology of these disabilities claimed as secondary to sarcoidosis was developed. The examiner diagnosed sarcoidosis, but found "no evidence of sarcoidosis at this time." No new PFTs were ordered: March 2002 PFT values were used. In December 2002, following the examination in November 2002, the RO entered a rating action proposing to reduce the Veteran's evaluation for sarcoidosis from 30 to 0 percent. Subsequently, in June 2003, the RO implemented the proposed reduction, effective from October 1, 2003. Congress has provided that a veteran's disability rating will not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C.A. § 1155. For reductions in rating to be properly accomplished, specific requirements must be met. See 38 C.F.R. § 3.344; see also Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Under 38 C.F.R. § 3.344, if a rating has been in effect for five years or more, there must be material improvement in the disability before there is any rating reduction. In such cases, the provisions of 38 C.F.R. § 3.344(a) and (b) are for application. Because the 30 percent rating here at issue was in effect for less than five years, the provisions of 38 C.F.R. § 3.344(a) and (b) are not applicable. The United States Court of Appeals for Veterans Claims (Court) has noted, however, that 38 C.F.R. §§ 4.2 and 4.10 apply generally to all rating reductions and that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." See Brown v. Brown, 5 Vet. App. 413, 420-22 (1993); see also 38 C.F.R. §§ 4.1, 4.2, 4.13; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition has demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-82. Care must be taken, however, to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history. Here, the record shows that the 30 percent rating assigned for sarcoidosis in April 2002 was based on examination findings and PFT values. The basis for the proposed reductions in the Veteran's ratings was the report of a November 2002 VA examination, which used the same PFT values that had served as the basis for the increased rating. Clinical findings on both examinations were similar. The reduction was attributed to the fact that the November 2002 examiner did not attribute those findings to the service-connected sarcoidosis. Significantly, pre- and post-reduction medical evidence reveals that the Veteran's service-connected sarcoidosis has not demonstrated actual improvement. The "positive" pre-reduction evidence includes a February 2003 private medical opinion from Dr. R. D. Mullins which noted that he had treated the Veteran for many years for "breathing problems" and that his opinion was that these problems "are most likely related to sarcoidosis." Post-reduction evidence includes an August 2009 private medical opinion from Dr. G. van Diepen, who has treated the Veteran since 2005, and noted that s/he "[feels] strongly that all of patient's past and current pulmonary problems . . . are a direct consequence of his progressive and incurable sarcoidosis, and a July 2011 independent medical opinion (IME) opined that "it is at least as likely as not that the Veteran has residuals of a pulmonary sarcoidosis and that a significant portion of his pulmonary disability is attributable to his diagnosis of sarcoidosis." The IME opinion provider based his conclusions, in part, on the fact that the Veteran had ocular involvement and the fact that the Veteran did not have emphysema; however, the medical evidence indicates that the converse is true. A February 2007 VA ophthalmic treatment record notes sarcoidosis without ocular involvement, and an October 2008 VA treatment record noted that there was a significant emphysema component with respect to the Veteran's respiratory problems. Regardless, the IME opinion provider also based his conclusions on the undisputed fact that the Veteran had high corticosteroid requirements, which the opinion provider noted would be unusual for asthma or chronic obstructive pulmonary disease. VA has conceded that the Veteran's high steroid dosage is due to his service-connected sarcoidosis in its grants of service connection for osteoporosis and cataracts due to steroid medication taken for sarcoidosis. Even given the limitations in the probative value of the IME opinion, the fact remains that the opinions of the Veteran's private treatment providers support the claim. Further, as noted by the IME expert, "the nature of sarcoidosis" makes the case very difficult and complicated, and it is a challenge to address disease activity in cases involving sarcoidosis. The "negative" evidence includes VA examinations dated in May 2011, July 2011, and July 2012 have concluded that the Veteran does not have active sarcoidosis impacting his respiratory system based on no objective evidence upon review of imaging studies or clinical examination. Based on review of all evidence, the Board finds that the preponderance of the evidence fails to demonstrate improvement of the sarcoidosis disability here at issue under the ordinary conditions of life and work. Although the November 2002 VA examination found no active disease, those findings conflict with the opinions of the Veteran's private medical providers and with the opinion of the 2011 IME. The evidence is undisputed that the Veteran has significant respiratory disability. The Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Under the circumstances, and considering the totality of the evidence, the Board finds that the reduction in the evaluation for the Veteran's sarcoidosis was not proper. The evidence, at a minimum, gives rise to a reasonable doubt on the question. 38 C.F.R. § 4.2. Accordingly, restoration of the 30 percent rating for the Veteran's sarcoidosis is granted, effective from the date of reduction, October 1, 2003. Because the Board is granting the full benefit sought on appeal with respect to the restoration issue, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)), or the due process provisions of 38 C.F.R. § 3.105(e), have been satisfied. Those matters are moot. ORDER Restoration of the 30 percent rating for sarcoidosis is granted, effective October 1, 2003, subject to the law and regulations governing the award of monetary benefits. REMAND The Board's review of the claims file reveals that further development on the issues of entitlement to a higher rating for sarcoidosis, entitlement to service connection for bilateral hand and heart disorders (to include as secondary to service-connected sarcoidosis), and entitlement to a TDIU rating is warranted. The Veteran asserts that his claimed bilateral hand and heart disorders are linked to his service-connected sarcoidosis. Post-service evidence of record demonstrates treatment for tendonitis as well as nonspecific abnormal echocardiogram findings, arteriosclerotic vascular disease (ASCVD) with angina pectoris, and coronary artery disease. In addition, it is undisputed that he is currently service-connected for sarcoidosis. Turning to whether the Veteran's claimed disorders were proximately caused by or proximately aggravated by his service-connected sarcoidosis, the Board notes that there are multiple medical opinions of record addressing whether there is a causal connection between the claimed disorders and the service-connected sarcoidosis. For example, in a November 2002 VA examination report, the examiner indicated that as there was no evidence of sarcoidosis at that time, and it would be mere speculation to identify sarcoidosis as an etiology of the hand or heart condition. In a February 2003 statement, a private physician, R. D. M., D.O., indicated that the Veteran had been treated for breathing problems, angina, and arrhythmia. Taking the Veteran's history into consideration, the physician opined that all of his problems were most likely related to sarcoidosis. Finally, in the July 2011 IME report, a private physician indicated that the record showed complaints of chronic hand pain with some evidence of tendonitis but noted that there was no enough evidence for him to determine whether the Veteran's hand/joint pain was related to sarcoidosis. He suggested deferral to an opinion of a rheumatologist, noting that a synovial biopsy demonstrating granulomatous inflammation would be the gold standard for diagnosis. The July 2011 IME physician also reported that he did not see any evidence of coronary artery disease or significant ischemia. However he noted that if the Veteran were to develop coronary artery disease, chronic steroid use can be a risk factor in worsening that that condition. He further indicated that the question of cardiac involvement of sarcoid was raised in the record. It was noted that the Veteran's echocardiograms have not shown evidence of cardiomyopathy but did suggest nonspecific abnormal conduction. While noting that coronary artery disease and angina were not usually manifestations of cardiac sarcoid, he specifically reported that there was not enough evidence to make a diagnosis of cardiac sarcoid, indicating that cardiac MRI or cardiac PET imaging would be standard tests to make the diagnosis. The Court has held that the "duty to assist" includes a duty on VA's part to conduct a supplemental examination by a specialist where such an examination is recommended by a VA examining physician. See Hyder v. Derwinski, 1 Vet. App. 221, 224-25 (1991). In the present case, as noted above, the 2011 IME provider clearly indicated that further specific diagnostic testing would aid in answering the questions as to the etiology of the Veteran's bilateral hand and heart disabilities. In its October 2011 Remand, the Board requested that a rheumatologist perform an examination of the Veteran's hand and noted that a synovial biopsy would be helpful in adjudicating his claim. Likewise, the Board requested that a heart examination be performed and noted that cardiac MRI or PET imaging was indicated. In July 2012 the Veteran underwent a series of VA disability benefits questionnaires (DBQs) which included addressing the etiology of any hand and heart disorders. The examiner opined that a nexus opinion could not be provided as to either claim without resort to mere speculation, and the medical opinions provided did not address aggravation of a pre-existing disability by steroid medication for service-connected sarcoidosis. Neither a synovial biopsy of the hand(s) nor cardiac MRI or cardiac PET imaging was performed. Further, the examiner does not appear to be a rheumatologist. The Veteran, in his February 2013 written statement, has argued that the 2012 DBQs were inadequate as the diagnostic testing specified by the 2011 IME opinion provider was not performed, which suggests that he has conceded to undergo the invasive biopsy. The examiner also does not appear to be a rheumatologist. Accordingly, and because the Veteran has indicated (in February 2013) that he is willing to submit to further examination, and to the specific diagnostic tests identified by the 2011 IME opinion provider, additional development is required. Thus, in light of the cumulative record discussed above, the AMC should obtain additional VA medical examinations to clarify the nature and etiology of the Veteran's claimed bilateral hand and heart disorders on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Given the restoration of the 30 percent rating, the increased rating claim for sarcoidosis is remanded to the RO for readjudication. Further, as sarcoidosis is a systemic disorder, an increased rating for that disorder is inextricably intertwined with any disability found to be due to that systemic disorder, i.e. a heart or hand disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Here, in multiple statements of record, the Veteran reported that he is unable to work. He indicated that his service-connected sarcoidosis limited and then completely impeded his ability to hold gainful employment. In an August 2009 statement, a private treatment provider, G. V. D., D.O., indicated that the Veteran was extremely weak and struggled to do the bare minimal activities of daily living due to his severe pulmonary decompensation. The evidence of record indicates that the Veteran has a high school diploma and worked for many years as an automobile mechanic. A July 2012 VA eye DBQ provided the opinion that the Veteran had cataracts and dry eyes due to the steroids he takes for his service-connected sarcoidosis. The Veteran is service-connected for cataracts. Further the examiner stated his "ocular disability related to his need for chronic prednisone [treatment] for systemic sarcoidosis . . . does prevent him from working in his occupation as an automotive mechanic." Other July 2012 DBQ statements with respect to employability opine that his service-connected disabilities preclude him from lifting, bending, standing, walking, climbing stairs or ladders, kneeling, squatting, driving or operating machinery, operating a computer keyboard, or sitting more than a few minutes at a time or exertion." See July 2012 hip DBQ. Based on this evidence, the Board finds that the issue of TDIU, including on an extraschedular basis, has been reasonably raised by the record and is, thus, properly before the Board by virtue of his increased rating claim pursuant to Rice. The TDIU claim is inextricably intertwined with the issues of entitlement to service connection for the bilateral hand and heart disorders discussed above as well as the rating assigned for his sarcoidosis. Henderson v. West, 12 Vet. App. 11, 20 (1998). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded a synovial biopsy and then a medical opinion by a rheumatologist, if available, should be provided to clarify the nature and etiology of his claimed bilateral hand disorder. Recognition is given to the fact that a synovial biopsy is an invasive procedure, and that the Veteran should not be compelled to undergo such a procedure. Moreover, while he has had indicated that he desires to undergo a synovial biopsy, a later refusal to undergo the procedure shall not be held as prejudicial. Prior to the opinion, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide an opinion as to: a. whether it is as least as likely as not (50 percent probability or greater) that any diagnosed bilateral hand disorder was caused by his service-connected sarcoidosis; or b. whether it is as least as likely as not (50 percent probability or greater) that any diagnosed bilateral hand disorder was aggravated (permanently worsened) by his service-connected sarcoidosis, to include as a result of medications, like steroids, used to treat sarcoidosis. In doing so, the medical provider should acknowledge and discuss the findings made by the private physicians in the February 2003 statement as well as July 2011 IME and by VA examiner in the November 2002 VA examination report as well as the Veteran's assertions of a link between his claimed bilateral hand disorder and his service-connected sarcoidosis. The opinion provider should identify whether he is a rheumatologist. A complete rationale should be provided for any opinion expressed. If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with supporting rationale for why an opinion cannot be provided without resorting to mere speculation. 2. The Veteran should be afforded a cardiac MRI or cardiac PET imaging, and then a medical opinion should be provided to clarify the nature and etiology of any diagnosed heart disorder. The claims folder and a copy of this remand must be made available to the medical provider for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. Based on a review of the claims folder and utilizing sound medical principles, the examiner is requested to provide an opinion as to: a. whether it is as least as likely as not (50 percent probability or greater) that any diagnosed heart disorder was caused by his service-connected sarcoidosis; or b. whether it is as least as likely as not (50 percent probability or greater) that any diagnosed heart disorder was aggravated (permanently worsened) by his service-connected sarcoidosis, to include as a result of medications, like steroids, used to treat sarcoidosis. . In doing so, the examiner should acknowledge and discuss the findings made by the private physicians in the February 2003 statement as well as July 2011 IME and by VA examiner in the November 2002 VA examination report as well as the Veteran's assertions of a link between his claimed heart disorder and his service-connected sarcoidosis. A complete rationale should be provided for any opinion expressed. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be readjudicated, to include TDIU, including on an extraschedular basis, if warranted, with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs