Citation Nr: 1334256	
Decision Date: 10/29/13    Archive Date: 11/06/13

DOCKET NO.  10-15 449	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

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


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel



INTRODUCTION

The Veteran had active service March 1977 to March 1997.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Waco, Texas Regional Office (RO), of the Department of Veterans Affairs (VA), which granted entitlement to service connection for obstructive sleep apnea and assigned a 50 percent rating, effective March 4, 2009 (the date of claim for service connection).  

The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence.


FINDING OF FACT

The Veteran's service-connected sleep apnea is manifested by sleep problems requiring the use of a CPAP machine, but has not resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonale, and has not required a tracheostomy.


CONCLUSION OF LAW

The criteria for an initial rating greater than 50 percent for service-connected obstructive sleep apnea have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.7, 4.97, Diagnostic Code (DC) 6847 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  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 Veteran 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).

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his possession that pertains to the claim.  The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal.  See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008).  Thus, any error related to this element is harmless.

In this case, the claim is a "downstream" issue in that it arose from the initial grant of service connection.  Prior to the rating decision granting service connection, the RO issued a notice letter in April 2009 that fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. 
§ 3.159(b)(1) (2013); Quartuccio, at 187.  The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim.  The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA.  See Pelegrini II, at 120-121.  The letter also explained to the Veteran how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  Private treatment records identified by the Veteran have been obtained, to the extent possible.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.  

With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013).

The RO provided the Veteran an appropriate VA examination in February 2010 as part of the Veteran's claim for entitlement to service connection for sleep apnea. The examination report is thorough and supported by outpatient treatment records.  The examination discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria.  The examination also discussed the impact of the disability on the Veteran's daily living.  Based on the examinations and the fact there is no rule as to how current an examination must be, the Board concludes the February 2010 VA examination in this case is adequate upon which to base a decision.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

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 case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002).  Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013).  The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013).  VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion.  Schafrath, 1 Vet. App. at 589.  If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2013).  

Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied.  Fenderson v. West, 12 Vet. App. 119 (1999).

The Veteran's obstructive sleep apnea disability is rated under DC 6847 (Sleep Apnea Syndrome (Obstructive, Central, Mixed)).  38 C.F.R. § 4.97, DC 6847 (2013).  The Veteran contends that his sleep apnea is more severe than currently rated.

DC 6847 provides ratings for sleep apnea syndromes (obstructive, central, and mixed).  Sleep apnea that is asymptomatic but with documented sleep disorder breathing is rated noncompensably (0 percent) disabling.  Sleep apnea that is persistent, with day-time hypersomnolence, is rated 30 percent disabling.  Sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine is rated 50 percent disabling.  Sleep apnea that manifests chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy, is rated 100 percent disabling.  38 C.F.R. 
§ 4.97.

In this case, the Veteran's service treatment records include multiple complaints of trouble sleeping.

After service, in June 2004 the Veteran was afforded a VA respiratory examination for a rhinitis claim.  At that time, the examiner concluded that discussion of respiratory failure or the presence of cor pulmonale was not applicable.

In December 2006, the Veteran underwent a sleep study.  The Veteran reported snoring, unrefreshing sleep, and excessive daytime sleepiness.  Following an overnight polysomnogram, the treatment provider diagnosed severe obstructive sleep apnea, with lowest oxygen saturation of 87.7 percent.  This problem resulted in decreased sleep efficiency.  

The Veteran was issued a CPAP machine in September 2007 to help with his sleep apnea.  VA treatment records from March 2008, September 2008, and November 2008 include findings of clear lungs to auscultation that were well ventilated.  In June 2008, the Veteran's oxygen saturation was 97 percent on room air.  He was noted to have poor compliance in using the CPAP machine.  The Veteran complained about poor mask fit for the CPAP machine and the Veteran was provided with a new mask.  In June 2009, the Veteran's compliance with using the CPAP machine had improved somewhat, but he complained about the mask coming off in the middle of the night.  On examination, the Veteran's vital signs were "OK" and he had good pulses without cyanosis or clubbing.

The Veteran was afforded a VA examination in February 2010.  The examiner noted review of the claims file.  The Veteran reported several instances of sleep problems in service and discussed the December 2006 diagnosis of severe chronic obstructive sleep apnea and the prescription of a CPAP machine.  The Veteran denied fever, night sweats, or weight changes.  He did report excessive daytime sleepiness, which had improved with use of the CPAP machine.  On examination, the examiner noted that there was no cor pulmonale, congestive heart failure, respiratory failure, or other pulmonary problems.  The examiner diagnosed severe obstructive sleep apnea that required a CPAP machine.

The Board finds no objective evidence that would warrant a rating greater than 50 percent for the Veteran's obstructive sleep apnea.  In this regard, the Board notes that VA must consider all the evidence of record to determine when an ascertainable increase occurred in the rated disability.  See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999).

In order to warrant a higher rating than 50 percent under DC 6847, there would need to be evidence of chronic respiratory failure with carbon dioxide retention or cor pulmonale.  Or, in the alternative, the sleep apnea must necessitate a tracheostomy.  In this case, the Veteran does not have chronic respiratory failure and does not require a tracheostomy.  The February 2010 VA examiner specifically found no evidence of respiratory failure or cor pulmonale and the Veteran's sleep apnea is treated with a CPAP machine, rather than a tracheostomy.  Accordingly, a higher rating under DC 6847 is not warranted.

In addition, no higher or alternative rating under a different DC can be applied.  The Board notes that there are other DCs relating to the respiratory system, specifically DCs 6502 to 6846.  38 C.F.R. § 4.97.  In this case, the Board finds that the Veteran's obstructive sleep apnea disability and related symptoms most closely approximate that for DC 6847, that is, for sleep apnea syndrome.  As such, application of one of the other DCs for the respiratory system is not warranted.
As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran.  In this case, the Board finds no provision upon which to assign a rating greater than 50 percent for the Veteran's obstructive sleep apnea.  Furthermore, the Board concludes that this award is warranted for the entire period under which this appeal has been pending, and that assignment of staged ratings is not for application.  Fenderson, 12 Vet. App. at 119. 

Extraschedular Consideration

The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis.  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 based 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) (2013).  An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards.  See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected obstructive sleep apnea disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's obstructive sleep apnea disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology.  Specifically, the Veteran reports sleep problems, particularly snoring, unrefreshing sleep, and excessive daytime sleepiness, particularly when not using his prescribed CPAP machine.  These are the specific types of symptoms and problems contemplated by the 50 percent rating under DC 6847.  Thus, the Veteran's current schedular rating under DC 6847 is adequate to fully compensate him for his disability on appeal.  

In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology.  The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.

As a final matter, as the Veteran has not submitted evidence of unemployability that is related to his service-connected sleep apnea, and as the record does not otherwise raise the issue, the Board expressly finds that entitlement to a total disability evaluation based on individual unemployability has not been raised.  See Rice v. Shinseki, 22 Vet. App. 447 (2009). 




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ORDER

Entitlement to an initial rating greater than 50 percent for obstructive sleep apnea is denied.



____________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs