Citation Nr: 1333168	
Decision Date: 10/23/13    Archive Date: 10/24/13

DOCKET NO.  09-25 136	)	DATE
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On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an effective date earlier than November 21, 2006, for the award of a 30 percent disability rating for sarcoidosis.  

2.  Entitlement to service connection for a right foot disability.

3.  Entitlement to service connection for a left foot disability.

4.  Entitlement to a disability rating greater than 30 percent for sarcoidosis.

5.  Entitlement to a disability rating greater than 10 percent for lumbosacral strain.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Heather J. Harter, Counsel



INTRODUCTION

The Veteran served on active duty from May 1969 to October 1990, and from February 12, 1991 to March 23, 1991, when he was activated in support of Operation Desert Storm.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 RO decision which granted service connection for sarcoidosis, assigning an initial noncompensable disability rating from October 8, 2003, to November 20, 2006.  A 30 percent disability rating was assigned effective November 21, 2006.  The Veteran expressed timely disagreement with the effective date assigned.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006), which held that if a claimant wishes to obtain an effective date earlier than that assigned in a RO decision, the claimant must file a timely appeal as to that decision.  

The Veteran requested a hearing before a Veterans Law Judge via videoconference.  Such a hearing was scheduled in November 2011, and he was provided with notice of the scheduled time and date.  However, he failed to report for the hearing and has not made any attempt to show good cause for his failure.  Under these circumstances, the request for a hearing is considered to have been withdrawn.  38 C.F.R. § 20.704(d).  The Board will therefore proceed to review the appeal based upon all the evidence currently of record.  

The issues of entitlement to service connection for a right foot disability and a left foot disability, entitlement to a disability rating greater than 30 percent for sarcoidosis, and a disability rating greater than 10 percent for lumbosacral strain 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.

The Board observes that the medical evidence appears to indicate the Veteran has skin manifestations of his sarcoidosis in addition to those symptoms considered in the current disability rating.  As his dermatologic involvement has not been formally recognized or rated, this matter is referred to the RO for appropriate action (if needed).


FINDING OF FACT

The Veteran took several courses of Prednisone, a corticosteroid, for control of his sarcoidosis, shortly after the disease was diagnosed.  


CONCLUSION OF LAW

An effective date of October 8, 2003, is warranted for the award of a 30 percent disability rating for sarcoidosis.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.400, 4.97, Diagnostic Code 6846 (2013).


REASONS AND BASES FOR FINDING 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).

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in his Virtual VA file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on her behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The claimant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

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 date of the initial grant of service connection until the present.  Fenderson v. West, 12 Vet. App. 119 (1999).  

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).

In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits, or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.151, 3.400.  See Wells v. Derwinski, 3 Vet. App. 307 (1992).  Benefits are generally awarded based on the date of receipt of the claim.  38 C.F.R. §§ 3.1(r), 3.400.

With regard to the effective date assigned to increased disability compensation ratings, governing regulation provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise the effective date will be the date of receipt of the claim.  38 C.F.R. § 3.400(o)(2).

Under governing regulation, sarcoidosis which causes cor pulmonale, or cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment is rated as 100 percent disabling.  Sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control is rated as 60 percent disabling.  Sarcoidosis with pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids is rated as 30 percent disabling.  Sarcoidosis with chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment is rated as noncompensable.  Alternatively, the regulation provides that sarcoidosis may be rated as residuals of chronic bronchitis under the provisions of Diagnostic Code 6600 and extra-pulmonary involvement under the specific body system involved.  38 C.F.R. § 4.97, Diagnostic Code 6846.  It is noteworthy that although some of the rating criteria in 38 C.F.R. § 4.97 were revised in May 2006, the provisions of Diagnostic Code 6846 were not amended and have remained the same throughout the time period at issue here.  

Historically, the Veteran filed a claim for service connection for sarcoidosis in October 2003, shortly after receiving a diagnosis based upon a pathology report generated following sinus surgery.  The service connection claim was denied by the RO and he appealed to the Board.  

Following a Board remand for further medical opinion, in August 2007, the RO granted service connection for sarcoidosis as having been incurred during service.  The RO assigned an initial noncompensable disability rating from October 8, 2003, to November 20, 2006; followed by a 30 percent disability rating effective November 21, 2006.   

In reaching this determination, the RO calculated that including the Veteran's sinusitis disability in the rating for sarcoidosis yielded a higher disability rating for the Veteran overall.

The November 2006 effective date was identified as the earliest date upon which the medical evidence reflected the Veteran was taking continuous prescription medication to treat his sarcoidosis.  Careful review of the record reveals that pertinent to the time period subsequent to November 2006, the Veteran was indeed taking continuous prescription medication to control his sarcoidosis; however, he was not taking maintenance or intermittent corticosteroids, as required by the regulation.  The medical evidence reflects that a medication called Plaquenil controlled the skin manifestations of his sarcoidosis.  Plaquenil is not a corticosteroid, and thus technically does not meet the requirement set forth in Diagnostic Code 6846.  However, the record contains references to several week-long courses of Prednisone, which is a corticosteroid, prescribed for the short-term control of sarcoidosis during the period after sarcoidosis was initially identified as the cause of the Veteran's various symptoms.  

These brief period of treatment with a corticosteroid do indeed meet the criterion of sarcoidosis symptoms requiring intermittent corticosteroids, which is set forth in the criteria for a 30 percent disability rating.  Furthermore, because these short-term treatments occurred prior to November 2006, they support the award of 30 percent during this earlier time period.  Therefore, the Board concludes that the evidence supports a 30 percent disability rating during the time period from October 2003 through November 2006.  Thus, an earlier effective date for the 30 percent disability rating is granted.  As set forth above, the purview of this appeal was simply the time frame between October 2003 and November 2006.  It would be outside the Board's authority in this matter to disturb the 30 percent awarded from November 2006 onward.  

Furthermore, we observe that the matter of an increased disability rating for sarcoidosis is the subject of a separate appeal action, which is remanded below.


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).  The Veteran was provided with this information in a February 2008 letter following the receipt of his notice of disagreement as to the effective date assigned.

With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  

The Board finds that the VA examinations obtained in this case are adequate.  The examination reports relied upon were predicated on a review of the claims folder and the relevant medical records contained therein, except where noted; contain a description of the history of the disabilities at issue; and document and consider the Veteran's complaints and symptoms.  The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed.  Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).  

It is important to explain that the Veteran's complete VA medical records relating to the time frame at issue, from October 2003 to November 2006, are not actually available for review by the Board.  VA medical records are deemed to be constructively of record in proceedings before the VA.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  In this case, however, careful review of the evidence of record shows that the record contains adequate information upon which to base an informed decision on the merits of the Veteran's claim, leading to the grant of this claim.  Under these circumstances, the Board chooses to avoid a technical remand and render a determination on the Veteran's claim without further delay.  In light of the outcome reached below, no harm accrues to the Veteran through this action. 

VA treatment records and VA examination reports 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 of 30 percent for sarcoidosis is warranted, effective October 8, 2003, subject to the laws and regulations governing the award of monetary benefits.  


REMAND

In a December 2010 decision, the RO denied service connection for a right foot disability and a left foot disability; and denied entitlement to a disability rating greater than 30 percent for sarcoidosis, and a disability rating greater than 10 percent for lumbosacral strain.  Notice of this denial was mailed to the Veteran in January 2011.  The Veteran expressed disagreement with these four denials in statement received by the RO in March 2011.  The Board finds that this March 2011 statement constitutes a notice of disagreement with the December 2010 decision, because it was filed within the requisite time period and it indicates dissatisfaction and a desire to contest the denial.  See 38 C.F.R. §§ 20.201, 20.302.  Following review of the Veteran's paper claims file and his Virtual VA claims file, it does not appear that the RO has yet issued a statement of the case however.  

After a notice of disagreement has been filed in any claim, the RO is required to issue a statement of the case containing a summary of the evidence, the applicable laws and regulations, and an explanation as to the decision previously reached, unless the Veteran has withdrawn the notice of disagreement.  38 C.F.R. §§ 19.26, 19.29.  Technically, when there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, thereby initiating the appellate process, a remand is required for procedural reasons.  Manlincon v. West, 12 Vet. App. 238 (1999).

Thus, the Board accepts limited jurisdiction over this issue, for the sole purpose of remanding to order issuance of a statement of the case along with information about the process for perfecting an appeal as to these claims, if the Veteran so desires.  

Accordingly, the case is REMANDED for the following action:

The RO should furnish the Veteran with a Statement of the Case pertaining to the issues of entitlement to service connection for a right foot disability and a left foot disability, entitlement to a disability rating greater than 30 percent for sarcoidosis, and a disability rating greater than 10 percent for lumbosacral strain.  This claim will not be returned to the Board unless the Veteran perfects an appeal by filing a timely substantive appeal.

The Veteran has the right to submit additional evidence and argument on the 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 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. 2013).

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



Department of Veterans Affairs