Citation Nr: 1612949	
Decision Date: 03/30/16    Archive Date: 04/07/16

DOCKET NO.  11-05 474 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for sarcoidosis.


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

E. Skiouris, Associate Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from June 1968 to February 1972.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Saint Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in December 2009.  The RO issued a statement of the case (SOC) in February 2011.  The Veteran subsequently perfected his appeal with a VA Form 9 in February 2011.  

In October 2014, the Board remanded the appeal for additional development.  The appeal has now been returned to the Board for appellate disposition.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. 


FINDING OF FACT

Service-connected sarcoidosis is not active and no associated pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control has been demonstrated.


CONCLUSION OF LAW

The criteria for a disability rating in excess of 30 percent for sarcoidosis have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.97, Diagnostic Codes 6600, 6846 (2015)








REASONS AND BASES FOR FINDING AND CONCLUSION


I. Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, in a letter dated December 2009, the appellant was provided notice regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the appellant and what information and evidence will be obtained by VA.   

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records, and VA examination reports.  His statements in support of the claim are also of record.  After a careful review of such statements, the Board has concluded that no available, pertinent evidence has been identified that remains outstanding. 

The Veteran underwent a VA examination in December 2009.  This examination is found to be adequate in so far as it thoroughly and accurately portrays the extent of the sarcoidosis.  It was conducted after a review of the claims file and with a history obtained from the Veteran.  Therefore the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one).

The Board notes that the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) ("mere passage of time" between the date of the RO's decision and the Board's review of that decision does not require a new medical examination to be provided).  

The Board notes the case was remanded in October 2014.  The Board's October 2014 remand directed that the Veteran be scheduled for a Travel Board hearing.  In October 2015 the Veteran submitted correspondence indicating he desired a videoconference hearing.  In November 2015, the RO notified the Veteran of a scheduled Travel Board hearing.  The Veteran subsequently in December 2015 indicated he did not wish to have a Travel Board hearing, thereafter the RO returned this matter to the Board.  

Accordingly, the requirements of the October 2014, remand directives were ultimately accomplished and substantially complied with.  See Stegall v. West, 11 Vet. App. 268 (1998).

Significantly, neither the appellant nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183  (2002).




II. Legal Criteria 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  Where 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 (2015). 

In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127.

The Veteran bears the burden of presenting and supporting his claim for benefits.  See 38 U.S.C.A. § 5107(a).  In its evaluation, the Board considers all information and lay and medical evidence of record.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant.  Id.

Sarcoidosis is rated under 38 C.F.R. § 4.97 Diagnostic Code 6846.  Under this code, pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids warrants a 30 percent disability rating.  Pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control warrants a 60 percent rating.  A 100 percent rating is assigned for cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment.  38 C.F.R. § 4.100 Diagnostic Code 6846. 

A note under Diagnostic Code 6846 provides that sarcoidosis may also be rated as chronic bronchitis (Diagnostic Code 6600) and extra-pulmonary involvement under the specific body system involved.

Diagnostic Code 6600 provides that a 30 percent rating is assigned where forced expiratory volume in 1 second (FEV-1) is 40 to 50 percent predicted, or FEV-1 divided by forced vital capacity (FVC) of 56 to 70 percent, or diffusion capacity of the lung for carbon monoxide by single breath method (DLCO) of 56 to 65 percent.  A 60 percent rating is warranted where there is FEV-1 of 40 to 55 percent or FEV-1/FVC to 40 to 55 percent, or DLCO of 40 to 55 percent; or maximum oxygen consumption of 15 to 20 ml/kg in.  Finally, a 100 percent rating is warranted were FEV-1 is less than 40 percent of predicted value, or; the ratio of FEV-1/FVC is less than 40 percent, or DLCO is less than 40 percent predicted, or; maximum exercise capacity is less than 15 ml/kg in oxygen consumption, or; cor pulmonale, or; right ventricular hypertrophy, or; pulmonary hypertension, or; episodes of acute respiratory failure, or; requires outpatient oxygen thereby. 38 C.F.R. § 4.97 Diagnostic Code 6600.

Where 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. 

III. Analysis

In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected sarcoidosis.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability.  In this regard the Board notes that where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

The Veteran was originally granted service connection for sarcoidosis in an August 1973 rating decision. The disability was assigned a 30 percent rating effective May 21, 1973.  The Veteran filed the instant claim for an increased rating for sarcoidosis in October 2009.

In response to his claim for an increase, the Veteran was afforded a VA examination in December 2009, at the Biloxi VAMC.  The Veteran did not report any incapacitating episodes in the prior twelve months.  The Veteran reported being independent in his activities of daily living.  Records from October 2009 reveal the Veteran was seen for a complaint of coughing with production of green sputum.  A chest x-ray was taken and that indicated changes consistent with COPD and questionable lower retrosternal nodule.  VAMC treatment records indicated routine visits with no active complaints regarding sarcoidosis.  The examiner noted that the Veteran's COPD is consistent with his history of chronic smoking.  The Veteran's chest was bilaterally symmetric, respirations are thythmic, and his lungs are clear.  There were no wheezes or crackles.  The Veteran's heart rate was regular and rhythmic.  There was no dermatitis or edema.  The examiner noted that the Veteran's sarcoidis presented with normal objective findings at that time.  There was no evidence of an active disease process.

The Veteran's VA outpatient treatment records from the Pensacola VAMC from 2007 through 2009, show no treatment for sarcoidosis.   There is no evidence in the records that the Veteran has been treated for sarcoidosis. The Veteran has not submitted any evidence of treatment for sarcoidosis.  


In light of the characterization of his disability as asymptomatic and without active disease or manifestations, the Board has found that the Veteran is not entitled to a disability rating in excess of 30 percent for sarcoidosis.  The evidence does not establish that the Veteran's condition requires systemic high dose corticosteroids for control, which would warrant a higher 60 percent rating.  Moreover, there is no evidence of record that the Veteran has cor pulmonale or congestive heart failure, or progressive pulomonary disease.  There is no evidence of pulomonary involvement requiring systemic high dose corticosteroids for control.   

The Board has also considered whether the Veteran is entitled to a higher rating under Diagnostic Code 6600 for chronic bronchitis, but has also determined that a rating in excess of 30 percent is not warranted.  In so finding, the Board notes that there is no evidence of record that there is pulmonary involvement  to warrant an evaluation under Diagnostic  Code 6600.  

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 30 percent rating.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

The Board has also considered whether this case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. However, in the second step of the inquiry, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Thun v. Peake, 22 Vet. App. 111 (2008).

In the case at hand, the Board finds that the rating criteria set forth above reasonably describe the claimant's disability level and symptomatology, and thus the assigned schedular evaluation is, therefore, adequate,  Accordingly, the Board has determined that referral of this case for extra-schedular consideration is not in order. Id.

ORDER

Entitlement to a disability rating in excess of 30 percent for sarcoidosis is denied.




____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs