Citation Nr: 1756044 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 12-03 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for obstructive sleep apnea. 2. Entitlement to an initial rating in excess of 30 percent for sarcoidosis. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Attorney ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from November 1992 to January 1998 with a period of active duty for training from June 1991 to August 1991. This matter came before the Board of Veterans' Appeals (Board) from decisions by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2015, when it was remanded for additional development. The Board notes there is an additional issue on appeal that the Veteran has perfected but is not yet ripe for Board review: entitlement to recognition of K. as a dependent child during the period from January 2009 to September 2009. The record indicates that this issue is pending development, as noted in the January 2017 supplemental statement of the case. Jurisdiction over this issue remains at the RO. See 38 C.F.R. §§ 3.103, 19.36, 20.1304(a). See also Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due Process protections apply to disability compensation proceedings before the Board). FINDINGS OF FACT 1. The currently diagnosed sleep apnea began during service. 2. The sarcoidosis requires constant or near-constant use of low-dose systemic therapy to control symptoms, namely skin lesions, and resulted in diminished pulmonary function as of February 17, 2004 (as demonstrated by a FEV-1/FVC below 80 percent). 3. The sarcoidosis has not required use of high dose corticosteroids and has not resulted in cor pulmonale, cardiac involvement with congestive heart failure, or progressive pulmonary disease. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303 (2017). 2. The criteria for a 60 percent rating for extrapulmonary involvement have been met throughout the claim and the criteria for a 10 percent rating for respiratory impairment have been met effective February 17, 2004, for sarcoidosis. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.97 Diagnostic Codes 6600 and 6846, § 4.118 Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Legal Criteria Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for sleep apnea based on the competent and credible evidence of sleep apnea during and since service. The record reveals a diagnosis of sleep apnea. Thus, the issue is whether the sleep apnea is related to service. A December 1997 treatment record reveals the Veteran's history of shortness of breath for two weeks, worse at night and in the morning, and increased snoring. Differential diagnoses included sleep apnea. Postservice records include the Veteran and his spouse's history of snoring and apneic symptoms during and service. See, e.g., October 2006, December 2007, and February 2009 private treatment records; December 2008 VA examination record. The Veteran and his spouse are competent to report the existence of symptoms during and since service that are currently attributed to sleep apnea. Resolving all doubt in favor of the Veteran, the Board finds service connection is warranted for sleep apnea. Increased Rating Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that the duty to assist has been satisfied. All available service medical records, VA treatment and examination records, and post-service medical evidence identified by the Veteran as relevant to the claim have been obtained. The Veteran and his representative have not identified any outstanding, existing evidence that could be obtained to substantiate the claim decided herein. The Veteran was provided examinations to determine the nature and severity of the sarcoidosis, most recently in October 2016, and the Veteran has not alleged any inadequacy of the examination for the sarcoidosis. Finally, the Board is satisfied that there has been substantial compliance with the directives issued in the Board remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Accordingly, the Board will address the merits of the appellant's appeal. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). 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 10 percent rating is assigned where forced expiratory volume in 1 second (FEV-1) is 71- to 80-percent predicted; or FEV-1 divided by forced vital capacity (FVC) is 71 to 80 percent; or diffusion capacity of the lung for carbon monoxide by single breath method (DLCO) is 66- to 80-percent predicted. A 30 percent rating is assigned where FEV-1 is 40 to 50 percent predicted, FEV-1/FVC is 56 to 70 percent, or DLCO is 56 to 65 percent. A 60 percent rating is warranted where there is FEV-1 of 40 to 55 percent, FEV-1/FVC to 40 to 55 percent, 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. Diagnostic code 7806, which rates dermatitis or eczema, provides a 60 percent rating for eczema or dermatitis with more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period. 38 C.F.R. § 4.118 Diagnostic Code 7806. 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. Analysis Treatment records indicate that the Veteran has been maintained on at most 10 mg of Prednisone daily throughout the period of the claim. See generally M.C., MD, records (show decrease to 10 mg daily in May 2003). The October 2016 VA examiner has reported that a 10 mg dose is "very low" dose. There is no evidence of systemic high dose (therapeutic) corticosteroids during the period of the claim. Notably, although the records reveal "flares" of the sarcoidosis, the flares have only occurred when the Prednisone was lowered to 5 mg daily or stopped, at which point the Prednisone was increased to 10 mg daily. There is also no evidence of cor pulmonale, cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. In sum, there is no evidence of the impairment needed for a higher rating under Diagnostic Code 6846. The Board has considered whether a higher rating is warranted if the sarcoidosis is rated as chronic bronchitis (Diagnostic Code 6600) and extra-pulmonary involvement under the specific body system involved. The records reveals pulmonary function test results of FEV-1 81% and FEV-1/FVC 82 percent in July 2003, FEV-1 91% and FEV-1/FVC 77% in February 2004, and FEV-1 88% predicted, FEV-1/FVC 75%, and DLCO 78% predicted in October 2016. Furthermore, a February 2009 private treatment record indicates that the Veteran had essentially normal exercise oximetry and no real respiratory symptoms, and the October 2016 VA examiner noted that the Veteran had normal lung volume. The evidence indicates that a 10 percent rating would be warranted under Diagnostic Code 6600 as of February 17, 2004, the first date on which FEV-1/FVC is shown to be below 80%. The record indicates that the sarcoidosis results in intermittent skin lesions on the arms, legs, and scalp and intermittent left hip pain. There is no evidence, including history, of impairment of motion associated with the left hip pain that could warrant a compensable rating for the hip. However, the Board finds the evidence does warrant a 60 percent rating under Diagnostic Code 7806, which rates dermatitis. The medical evidence consistently indicates that the Veteran's sarcoidosis "mostly" manifests as dermatologic symptoms. The medical evidence also indicates that the Veteran has been on a near-constant dose of Prednisone to prevent recurrence of the dermatologic symptoms; notably, the Veteran is shown to have recurrence of skin lesions when Prednisone is discontinued and the recurrence of the skin lesions results in the resumption of Prednisone. In light of the foregoing, the Board finds a 60 percent rating is warranted throughout the period of the claim. The Board finds a rating higher than 60 percent is not warranted based on the skin lesions as there is no evidence of disfigurement or associated scarring. In sum, the Board finds a 60 percent rating is warranted for the associated skin lesions throughout the period of the claim and a 10 percent rating is warranted as analogous to bronchitis effective February 17, 2004, for the respiratory involvement of the sarcoidosis. ORDER Service connection for sleep apnea is granted. The Board having determined that the Veteran's sarcoidosis warrants a 10 percent rating for respiratory impairment from February 17, 2004, and a 60 percent rating for extrapulmonary involvement of the skin throughout the period of the claim, the benefit sought on appeal is granted to this extent and subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs