Citation Nr: 1329052	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  10-07 987	)	DATE
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On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut


THE ISSUES

1.  Entitlement to an initial disability rating greater than 50 percent for sleep apnea.

2.  Entitlement to an initial compensable disability rating for residuals of a left calf strain.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel



INTRODUCTION

The Veteran served on active duty from November 1988 to November 2008.

This matter comes before the Board of Veterans' Appeals (Board) from RO decisions of May 2009 and June 2010.  Service connection and noncompensable disability ratings for both disabilities at issue were granted in May 2009.  In June 2010, the RO increased the disability rating assigned to his sleep apnea to 50 percent, effective in December 2008.

The Veteran had additionally perfected an appeal as to the denial of service connection for heartburn.  However, in the June 2010 decision, the RO granted this benefit and assigned a noncompensable disability rating.  This grant represents a complete resolution of the appeal as to that issue.  Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).  The Veteran has not disagreed with either the disability rating or the effective date assigned for this disability.  We note that he was informed in a June 2010 letter that he had one year in which to file such a disagreement.

This issue of entitlement to an initial compensable disability rating for residuals of a left calf strain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The evidence shows the Veteran uses a continuous airway pressure machine for his sleep apnea. 

2.  Since his discharge from service, the Veteran's sleep apnea has not been productive of chronic respiratory failure with carbon dioxide retention or cor pulmonale; the Veteran has never needed a tracheostomy.

CONCLUSION OF LAW

A disability rating greater than 50 percent for sleep apnea is not warranted.  38 U.S.C.A. §§ 1155, 5107 West 2002); 38 C.F.R. § 4.130, Diagnostic Code 6847 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C.A. § 7104(a).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  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.

The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation.  See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).  The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review.  See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990).  To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Disability evaluations are assigned to reflect levels of current disability.  The appropriate rating is determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When 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.  In evaluating claims for increased ratings, the Board must evaluate the Veteran's condition with a critical eye toward the lack of usefulness of the body or system in question.  38 C.F.R. § 4.10.  

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. §§ 4.1, 4.41; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Because he has perfected an appeal as to the assignment of the initial rating for anxiety following the initial award of service connection, the VA is required to evaluate all the evidence of record reflecting the period of time between the effective dates of the initial grant of service connection until the present.  Fenderson v. West, 12 Vet. App. 119 (1999).  In this case, the initial grant of service connection, and the subsequent grant of a 50 percent disability rating were assigned effective the day after the Veteran's discharge from service.

Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period.  In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process.  O'Connell v. Nicholson, 21 Vet. App. 89 (2007).  In another relevant precedent, the Court noted that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

The Veteran's service-connected obstructive sleep apnea is evaluated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6847.  Under the criteria for Diagnostic Code 6847, a noncompensable rating is warranted for asymptomatic but documented sleep disorder breathing.  A 30 percent disability rating is warranted for persistent day-time hypersomnolence.  A 50 percent disability rating is warranted when the disability requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine.  

A total, 100 percent, disability rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires a tracheostomy. 

Historically, sleep apnea was diagnosed shortly before the Veteran's discharge from service.  A continuous airway pressure machine was prescribed in 2009.  After receiving documentation of the need for a continuous airway pressure machine, the RO increased the disability rating assigned to his sleep apnea to 50 percent, effective as of the day following the Veteran's discharge from service.  There is no indication, and the Veteran does not contend that he has experienced chronic respiratory failure, carbon dioxide retention, cor pulmonale, or a tracheotostomy, however.

The criteria set forth in Diagnostic Code 6847 are hardly ambiguous, and there is little room for interpretation in applying the law to the facts in sleep apnea cases, especially above the 50 percent level.  The Veteran's representative correctly points out that not all of the criteria set forth in any particular diagnostic code must be shown for any particular disability rating to be assigned, as the governing law and regulation only require that the overall disability picture more nearly approximates the criteria required for that rating.  However, in this case, the Veteran's disability picture related to his sleep apnea fits squarely within the criteria for the award of the currently-assigned 50 percent disability rating, at best.  He meets none of the criteria for the award of the next-higher 100 percent rating, and in fact, he has not presented any specific evidence or argument to support the assignment of a disability rating in excess of 50 percent.      

The preponderance of the evidence is against the claim and the appeal must be denied.

Extra-schedular rating

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.  For exceptional cases, VA has authorized the assignment of extraschedular ratings and provided the following guidance for awarding such ratings:

To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, [C & P], upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b).

As the Court recently explained in Thun, a "determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry."  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted.  Neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  See Floyd v. Brown, 9 Vet. App. 88, 95 (1996).  Anderson v. Shinseki, 22 Vet. App. 423 (2009).  

In this case, there is no indication that the schedular criteria fail to contemplate the Veteran's level of disability or symptomatology related to sleep apnea.  In fact, there is no assertion or evidentiary showing that the continuous airway pressure machine fails to improve the Veteran's overall sleep function.  As such there is no basis for referring this case for consideration of an extra-schedular rating.

Duties to notify and assist

When an application for benefits is received, VA has certain notice and assistance requirements under the law.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must:  (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  He was informed of these elements with regard to his claim for service connection in a January 2009 letter, prior to the initial adjudication of the matter on appeal.  The Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the disability rating assigned by a RO following an award of service connection.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  In this regard, once a decision has been made awarding service connection, a disability rating, and an effective date, § 5103(a) notice has served its purpose, as the claim has already been substantiated.  Sutton v. Nicholson, 20 Vet. App. 419 (2006).  

Service treatment records, VA medical records, and some post-service retiree medical records have been obtained and reviewed in support of the Veteran's claim.  All relevant records and contentions have been carefully reviewed.  The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matters decided herein.

ORDER

A disability rating greater than 50 percent for sleep apnea is denied.


REMAND

In support of his claim for an increased disability rating for his left calf strain residuals, the Veteran has submitted a copy of a March 2010 medical record showing that he received treatment, apparently at a military medical facility, as a Navy retiree.  The March 2010 report shows that the Veteran had a history of a torn left gastrocnemius muscle during service.  He had recently started a "standing job" and was experiencing worsening left calf pain.  The physician recommended physical therapy and noted that since the Veteran lived near the "VA in New Haven, this would be an ideal location for him."  Also attached to this record is a copy of the prescription form, recommending that he be evaluated and treated by a physical therapist for left lower leg pain/strain.

The RO did not evaluate this new evidence, but rather denied an increased disability rating based upon the "minimal findings," on the February 2009 VA examination.  The newly-submitted evidence reflects that the Veteran had begun a new job which impacted his left calf and was referred for physical therapy.  This evidence , however, indicates that his status has changed based upon increased use of the leg in his new job.  Furthermore, it indicates that there are likely to be additional medical records showing the more recent status of his left calf since the 2009 examination.  

Therefore, prior to further review of this appeal, the VA is responsible for obtaining the Veteran's physical therapy records, and any follow-up evaluation with the physician who prescribed the physical therapy.  If he indeed received physical therapy through the VA, such medical records are deemed to be constructively of record in proceedings before the VA.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  Any additional medical care provided by the military must be obtained unless the military medical facility advises VA that the records to not exist or the custodian does not have them.  38 C.F.R. § 3.159(c)(2).  If he sought private medical care/physical therapy for the left calf, VA must make reasonable efforts to obtain such records.  38 C.F.R. § 3.159(c)(1).  

The Board deems that another VA examination for purposes of obtaining an updated clinical picture of the Veteran's left calf and all functional impairment should be accomplished as well.  

Accordingly, the case is REMANDED for the following action:

1.  The RO should obtain all records of VA medical treatment afforded to the Veteran subsequent to March 2010 at the VA Connecticut Healthcare System, and all related VA facilities, for inclusion in the file.  

IF THE VETERAN HAS RECEIVED CARE FROM ANY VA FACILITY NOT LOCATED IN CONNECTICUT, HE SHOULD INFORM THE VA, SO THAT THESE RECORDS CAN BE OBTAINED ALSO.

2.  The RO should obtain the names and addresses of all medical care providers who have evaluated and/or treated the veteran for complaints involving his left calf since March 2010, to include military retiree medical care and private care providers.  After securing the necessary release for any private medical records, the RO should obtain these records for inclusion in the claims file.

If possible, the Veteran himself should submit these records in order to expedite his own appeal and then indicate that all records have been submitted (in writing).  In this way the Board can be sure it has all medical records. 

3.  AFTER the above records have been associated with the claims file, the veteran should be afforded a VA examination to identify all impairment related to his left calf strain residuals.  The claims folder, including all electronic medical records (if any), must be made available to the examiner for review before the examination.  The clinical examination must include all tests and studies deemed helpful by the examiner.  Specific comment upon the functional impairment related to the left calf in the context of his daily activities and also specifically with regard to his occupational functioning is requested.  The complete rationale for all opinions should be fully explained. 

4.  After the development requested above has been completed, the RO should again review the record.  Any further evidentiary development should be accomplished at this point.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto.

The Veteran has the right to submit additional evidence and argument on the matter 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 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).


______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs