Citation Nr: 1333008	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO. 13-02 924	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an initial compensable rating for sleep apnea.

REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. L. Wolinsky Associate Counsel








INTRODUCTION

The Veteran had active military service from December 1992 to July 2000.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  In that decision, the RO awarded service connection for sleep apnea and assigned an initial noncompensable rating effective March 16, 2011.  The Veteran has appealed the initial rating assigned.
 
The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical l claims file, but also his file on the electronic "Virtual VA" system to insure a total review of the evidence. 


FINDINGS OF FACT

1.  The degree of the Veteran's sleep apnea disability prior to aggravation by service-connected sinusitis is not factually ascertainable; thus, no aggravation deduction may be made.

2.  The Veteran requires use of a continuous airway pressure (CPAP) machine for breathing assistance.


CONCLUSION OF LAW

The criterion for an initial rating of 50 percent for sleep apnea is met.  38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.322, 3.159, 4.1, 4.3, 4.7, 4.20, 4.27, 4.97, Diagnostic Code 6847 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. VCAA

VA has met all statutory and regulatory notice and duty to assist provisions pursuant to the Veterans Claims Assistance Act.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).  Here, the Veteran has appealed the initial rating assigned for sleep apnea following an award of service connection.  The United States Court of Appeals for Veterans Claims (Court) has held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Dunlap v. Nicholson, 21 Vet. App. 112, 118-19 (2007).  Therefore, no further notice is needed under VCAA.

The duty to assist the Veteran has also been satisfied in this case.  The RO has obtained the Veteran's available service treatment records, as well as his post service medical records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board is unaware of any relevant documents in the possession of the Social Security Administration.  See Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). 

Additionally, a VA examination was conducted in May 2011.  The examiner conducted a physical examination, reviewed the claims files, recorded clinical findings, examined the Veteran's sleep study results and diagnosed the Veteran.  Since the examination included sufficient detail as to the current severity of the Veteran's sleep apnea, the Board concludes that these examinations are adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  As addressed below, the examiner did not discuss the date of onset and/or degree of aggravation of the sleep apnea by service-connected disability, but this deficiency is harmless as the Board fully resolves this issue in favor of the Veteran.  

Since the May 2011 VA examination, the Board finds no credible lay or medical evidence suggesting an increased severity of symptoms to the extent that a higher rating may be possible under the applicable rating criteria.  As such, there is no duty to provide further medical examination on this claim.  See VAOPGCPREC 11-95 (Apr. 7, 1995).

II. Merits of the Claim

The Veteran has been assigned a noncompensable initial evaluation under Diagnostic Code 6847 from March 16, 2011.  Historically, the Veteran has been service-connected for allergic sinusitis with sinus headaches and sinus congestion since July 2000.  The sleep apnea claim on appeal originated from a secondary service connection claim raised in March 2011.  The RO has granted service connection for sleep apnea as being aggravated by service-connected allergic rhinitis, but found that the level of his sleep apnea disability prior to service-connected aggravation had been 50 percent disabling, and that the level of aggravation had been 0 percent.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  See 38 C.F.R. § 4.3.

The veteran's entire history is reviewed when making a disability determination.  See 38 C.F.R. § 4.1.  Where the veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the veteran is entitled to "staged" ratings to compensate for times since filing his claim when the disability may have been more severe than at other times during the course of his appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).

Under Diagnostic Code 6847, a noncompensable evaluation is assigned for asymptomatic sleep apnea with documented sleep disorder breathing.  38 C.F.R. § 4.97, Diagnostic Code 6847.  A 30 percent evaluation is assigned for sleep apnea with persistent day-time hypersomnolence.  Id.  A 50 percent evaluation is assigned for sleep apnea requiring the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine.  Id.  A 100 percent evaluation is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy.  Id.

In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existing at that time.  38 C.F.R. § 3.322.  It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made.  Id.  If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made.

In aggravation cases, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

The Veteran was examined in May 2011, for nose, sinus, larynx, and pharynx.  The examiner reviewed the results of the Veteran's sleep study conducted in October 2010, and concluded that it was as least as likely as not that the Veteran's obstructive sleep apnea was aggravated by his service connected allergic rhinosinusitis.  The Veteran was described as requiring increased CPAP pressures due to his turbinate hypertrophy and nasal issues.  It was noted that the Veteran had tried multiple nasal appliances.  Based on the results of the sleep study, a December 2010 Diagnostic Study Report recommended a CPAP 8 cmH20 pressure machine.  In January 2011 the Veteran was ordered a CPAP machine set at 8 cmH20 per the sleep study.  The Veteran was also ordered and fitted with a nasal softgel mask.  The Veteran was educated on how to operate and clean both the CPAP machine and the mask. 

In addition to the medical evidence, the Veteran has provided lay statements regarding his sleep apnea symptoms.  The Veteran's claim for sleep apnea received in March 2011 included his statements that he had been diagnosed with sleep apnea with a CPAP machine.  In the Veteran's Notice of Disagreement (NOD) he additionally stated that he received the recommendation to use a CPAP machine with a pressure of 8 from a physician in January 2011.

The combined medical evidence and lay testimony clearly shows that Veteran requires the use of a breathing assistance device such as a CPAP which warrants a 50 percent disability rating under Diagnostic Code 6847.  

The RO has determined that the Veteran required the use of a CPAP machine prior to aggravation by service-connected sinus disability - and thus had a 50 percent rating prior to aggravation by service-connected disability which must be deducted under 38 C.F.R. § 3.322.  The RO has interpreted the medical evidence as demonstrating that the aggravation component by service-connected disability only involves the need for increased CPAP pressures.  Thus, a noncompensable rating has been assigned by operation of 38 C.F.R. § 3.322.

However, the Board is of the opinion that the degree of the Veteran's sleep apnea disability prior to aggravation by service-connected sinusitis is not factually ascertainable and, thus, no aggravation deduction may be made.  In this respect, the record shows that the Veteran's service-connected sinus disability increased in severity to the 30 percent level effective September 2008.  He first underwent a sleep study in December 2010, which led to the prescription of a CPAP.  The VA medical opinion establishes that service-connected sinus disability has required a higher CPAP pressures, but does not establish when this onset occurred, or ruled out that the sinus disability aggravation increased the sleep apnea disability to the extent that a CPAP machine was needed.  Thus, there is an insufficient factual basis to make any deduction in this case.  Therefore, the Board finds that the Veteran is entitled to an initial 50 percent rating.

In accordance with AB v. Brown, 6 Vet. App. 35 (1993), the Board examines the rating criteria for the highest possible rating for the Diagnostic Code.  However, the Veteran is not entitled to a higher rating as there is no lay or medical evidence of chronic respiratory failure with carbon dioxide retention, cor pulmonale or the need for a tracheostomy.  Therefore the Veteran's condition does not warrant a 100 percent rating under Diagnostic Code 6847. 

The Board has reviewed the remaining diagnostic codes relating to disabilities or diseases of the respiratory system, but finds that they are inapplicable in this case.  See 38 C.F.R. § 4.97, Diagnostic Codes 6502-6846.  The Board also notes that there is no lay or medical of record to suggest a basis for a staged rating in this appeal.  As such, assignment of additional staged ratings is not warranted. See Fenderson. Specifically, after the Veteran was recommended use of a CPAP machine in December 2010, his condition has not worsened.  Furthermore, the evidence of record does not show any period of time where the Veteran had the symptoms, or more closely approximated the symptoms, contemplated in the 100 percent disability rating of Diagnostic Code 6847.  

The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  According to the regulation, an extraschedular disability rating is warranted upon 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 that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

In Thun v. Peake, 22 Vet. App. 111, 115-16  (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule.  If so, the rating schedule is adequate and an extraschedular referral is not necessary.  If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  These include marked interference with employment and frequent periods of hospitalization.  Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating.

Here, the currently assigned 50 percent rating contemplates the need for a CPAP machine with persistent day-time hypersomnolence a consideration for the lower 30 percent rating.  The Veteran does not describe any exceptional or unusual symptoms.  VA's Rating Schedule allows for a higher schedular rating still, but the Veteran does not meet or more closely approximate those symptoms.  As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary.

In short, the evidence does not support the proposition that the Veteran's sleep apnea presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1).  Thus, referral of this issue to the appropriate VA officials for consideration of extraschedular evaluations is not warranted in this case.


ORDER

Entitlement to an initial disability rating of 50 percent for sleep apnea is granted.




____________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs