Citation Nr: 1428080 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 12-17 875A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an earlier effective date for the grant of a 10 percent disability rating for a respiratory disorder, to include sarcoidosis, prior to October 11, 2006. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Private Attorney ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from June to December 1991 and had a period of active duty for training beginning in 1982. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which implemented the Board's May 2007 decision granting service connection for sarcoidosis. Specifically, in the June 2008 rating decision, the RO implemented the grant of service connection for sarcoidosis, and awarded a noncompensable rating from May 28, 1993 to October 10, 2006, and assigned a 10 percent rating beginning October 11, 2006. In September 2008, the Veteran filed a notice of disagreement with the effective date assigned for the 10 percent disability rating prior to October 11, 2006. In November 2012, the Board remanded the case for the issuance of a statement of the case as one had not yet been provided to the Veteran. See Manlicon v. West, 12 Vet. App. 238, 240-41 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995) (noting that the filing of a notice of disagreement initiates the appeal process and requires VA to issue a statement of the case). This was accomplished, and in July 2012, the Veteran's representative submitted a substantive appeal. The issue is therefore properly before the Board for consideration. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran filed an original claim for service connection for a respiratory disorder, manifested by breathing difficulty and coughing on May 28, 1993. 2. It is factually ascertainable that in April 1993, the Veteran's respiratory disorder manifested symptoms of dyspnea on exertion, occasional shortness of breath, coughing, and a pulmonary function test demonstrated Forced Expiratory Volume in one second (FEV-1) of 72 percent predicted value. CONCLUSION OF LAW The criteria for an earlier effective date for the grant of a 10 percent disability rating for a respiratory disorder, to include sarcoidosis, have been met for the period prior to October 11, 2006. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). As the Board's decision herein to grant an effective date of May 28, 1993 for the award of a 10 percent disability rating for a respiratory disorder, to include sarcoidosis, is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) and the implementing regulations. Earlier Effective Date Law and Analysis The Veteran seeks an effective date prior to October 11, 2006 for the assignment of a 10 percent disability rating for sarcoidosis. The Veteran contends that the 10 percent rating should be effective May 28, 1993, the date of his initial claim for service connection for a respiratory disorder. In general, except as otherwise provided, the effective date of an evaluation of an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The Veteran's sarcoidosis is currently rated under Diagnostic Codes 6846-6600. Under Diagnostic Code 6846, sarcoidosis is rated under either the rating criteria of Diagnostic Code 6846, or the active disease or residuals are rated as chronic bronchitis (Diagnostic Code 6600) or as extra-pulmonary involvement under the specific body system involved. Under Diagnostic Code 6846, sarcoidosis with chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment warrants a noncompensable disability rating. Sarcoidosis with pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids is rated 30 percent. Sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control is rated 60 percent. Sarcoidosis with cor pulmonale or cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment, is rated 100 percent disabling. Sarcoidosis may alternatively be rated as chronic bronchitis under Diagnostic Code 6600. Under Diagnostic Code 6600, Forced Expiratory Volume in one second of 71 to 80 percent predicted, or; Forced Vital Capacity (FEV-1/FVC) of 56 to 70 percent Forced Expiratory Volume in one second (FEV-1) of 56 to 70 percent predicted, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method 66 to 80 percent predicted, warrants a 10 percent disability rating. Forced Vital Capacity (FEV-1/FVC) of 56 to 70 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 56- to 65-percent predicted, is rated 30 percent disabling. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling. 38 C.F.R. § 4.97. The criteria for evaluation of respiratory disorders were amended during the pendency of the Veteran's appeal, effective October 7, 1996. See 61 Fed. Reg. 46,728 (Sep. 5, 1996). Pursuant to the criteria in effect prior to October 7, 1996, a specific diagnostic code for sarcoidosis was not provided. The Board finds that the applicable diagnostic codes, effect prior to October 7, 1996, involved evaluations under chronic bronchitis (Diagnostic Code 6600) and pulmonary emphysema (Diagnostic Code 6603). Under Diagnostic Code 6600, effective prior to October 7, 1996, a 10 percent rating contemplated moderate chronic bronchitis with considerable night or morning cough, slight dyspnea on exercise, and scattered bilateral rales. A 30 percent rating contemplated moderately severe chronic bronchitis with persistent cough at intervals throughout the day, considerable expectoration, considerable dyspnea on exercise, rales throughout the chest, and beginning chronic airway obstruction. A 60 percent rating contemplated severe chronic bronchitis with severe productive cough and dyspnea on slight exertion and pulmonary function tests indicative of severe ventilatory impairment. A 100 percent rating contemplated pronounced chronic bronchitis with copious productive cough and dyspnea at rest with pulmonary function testing showing a severe degree of chronic airway obstruction, with symptoms of associated severe emphysema or cyanosis and findings of rightsided heart involvement. Under Diagnostic Code 6603 (emphysema), effective prior to October 7, 1996, a 10 percent rating also contemplated mild emphysema with evidence of ventilatory impairment on pulmonary function tests and/or definite dyspnea on prolonged exertion. A 30 percent rating also contemplated moderate emphysema with moderate dyspnea occurring after climbing one flight of stairs or walking more than one block on level surface with pulmonary function tests consistent with findings of moderate emphysema. A 60 percent rating also contemplated severe emphysema with exceptional dyspnea sufficient to prevent climbing one flight of steps or walking one block without stopping with ventilatory impairment of severe degree confirmed by pulmonary function tests with marked impairment of health. A 100 percent rating also contemplated pronounced emphysema, intractable and totally incapacitating, with dyspnea at rest or marked dyspnea and cyanosis on mild exertion, with the severity of the emphysema confirmed by chest X-rays and pulmonary function tests. Upon review of all the evidence of record, both lay and medical, the Board finds that it was factually ascertainable on April 14, 1993 that the Veteran' respiratory disorder more nearly approximated a 10 percent disability rating under both Diagnostic Code 6600 (effective October 7, 1996) and under Diagnostic Code 6603 (effective prior to October 7, 1996). Specifically, in an April 1993 VA treatment note, the Veteran's pulmonary function tests revealed FEV-1 of 79 percent predicted. In a subsequent May 1993 VA treatment note, the VA physician noted an impression of restrictive lung disease with known exposure to smoke, fumes, and sand from service in Saudi Arabia. The Veteran's pulmonary function tests revealed FEV-1 of 72 percent predicted. In a subsequent October 1993 VA treatment record, the Veteran complained of dyspnea on exertion. July and September 1997 VA treatment notes reflect that the Veteran's pulmonary function tests were FEV-1 of 80 percent predicted. A June 1998 VA treatment record demonstrated pulmonary function results of FEV-1 of 77 percent predicted. In a January 2000 VA treatment note, the Veteran complained of dyspnea and pulmonary function tests revealed FEV-1 of 79 percent predicted. In a June 2002 VA examination report, the examiner noted pulmonary function test results of FEV-1 of 83 percent predicted. According to the examiner, the Veteran's shortness of breath was due to deconditioning as the Veteran did not have any "organic cause" to define his shortness of breath. The examiner also stated that the Veteran's pulmonary function test results were due to the Veteran's "poor effort." The Board finds the June 2002 VA medical opinion to be of no probative value. The VA examiner did not provide reasons in support of the opinion that the Veteran's pulmonary function test results were a result of his poor effort, despite numerous previous pulmonary function test results showing some ventilatory impairment. Further, the Veteran was later diagnosed with sarcoidosis (organic cause for his shortness of breath), which was related to service, and in direct contradiction with the June 2002 VA examiner's opinion. In sum, the Board finds that the Veteran's respiratory test on April 14, 1993 showed a FEV-1 of 79 percent predicted, which more nearly approximated a 10 percent disability rating under Diagnostic Code 6600 (effective October 7, 1996) (a 10 percent rating is warranted for Forced Expiratory Volume in one second of 71 to 80 percent predicted). The Board further finds that the Veteran's respiratory test on April 14, 1993 more nearly approximated a 10 percent disability rating under Diagnostic Code 6603, effective prior to October 7, 1996, as there was evidence of ventilatory impairment on pulmonary function tests. See 38 C.F.R. § 4.97, Diagnostic Code 6603 (1993) (a 10 percent rating is warranted for mild emphysema with evidence of ventilatory impairment on pulmonary function tests and/or definite dyspnea on prolonged exertion). The evidence prior to October 11, 2006 also demonstrated that the Veteran had consistent complaints of dyspnea, shortness of breath on exertion, coughing, and reported feeling like he was "suffocating." See May 1993, September 1997, and June 1998 VA treatment notes. Although the evidence reflects that the Veteran's pulmonary functions tests more nearly approximated a 10 percent disability evaluation as of April 14, 1993, the earliest effective date possible in this case is May 28, 1993, the date of the Veteran's claim for service connection for a respiratory disorder. See 38 C.F.R. § 3.400 (the effective date of an evaluation of an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later (emphasis added). The Board further finds that Veteran has not asserted, and the law does not otherwise provide, that an earlier effective date prior to May 28, 1993 is warranted. As such, the Board finds that the appropriate effective date for the initial 10 percent disability rating for a respiratory disorder, to include sarcoidosis, is May 28, 1993. ORDER An earlier effective date of May 28, 1993, for the 10 percent disability rating for respiratory disorder, to include sarcoidosis, is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs