Citation Nr: 1756517	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  14-01 032	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an increased rating for upper airway resistance disorder in excess of 30 percent prior to May 31, 2013 and in excess of 50 percent thereafter.  

2.  Entitlement to an evaluation higher than 30 percent for eczema dermatitis since November 26, 2012.


REPRESENTATION

Appellant represented by:  David Russotto, Attorney


WITNESS AT HEARINGS ON APPEAL

The Veteran 



ATTORNEY FOR THE BOARD

Shana Z. Siesser, Counsel


INTRODUCTION

The Veteran served on active duty from April 1988 to July 2002. He had additional service in the National Guard. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 

In January 2015, a videoconference hearing was held before the undersigned Veterans Law Judge. Transcripts of that hearing, as well as an earlier RO hearing are associated with the claims file.

The claim for an increased rating for eczema was previously before the Board in October 2015, at which time it was remanded for additional development. 
 
This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA (VVA) electronic claims processing systems. Any future consideration of this claim should take into consideration the existence of the electronic record.

The issue of entitlement to an increased rating for eczema dermatitis is addressed in the REMAND portion of this decision and REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  Prior to May 31, 2013, the Veteran's restrictive airway disease did not require the use of a continuous airway pressure (CPAP) machine. 

2.  From May 31, 2013, the Veteran's restrictive airway disease requires use of a CPAP machine.  


CONCLUSION OF LAW

The criteria for ratings higher than 30 percent prior to May 31, 2013 and higher than 50 percent thereafter for restrictive airway disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.100, Diagnostic Code 6847 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017).

The Veteran was provided with the relevant notice and information. He has not alleged any notice deficiency during the adjudication of that claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA's duty to assist under the VCAA includes helping claimants to obtain pertinent records and providing Veterans with adequate VA examinations when indicated by the facts. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). The duty to assist is satisfied. See 38 C.F.R. § 3.159 (c).

Finally, the Board finds that the AOJ sufficiently complied with the remand directives of the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

Law and analysis 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994).

In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.

The Veteran's restrictive airway disease is rated as sleep apnea syndrome under Diagnostic Code 6847. 38 C.F.R. § 4.97. Pursuant to Diagnostic Code 6847, sleep apnea syndromes (obstructive, central, mixed) are rated noncompensable when asymptomatic, but with documented sleep disorder breathing.  A 30 percent disability rating is warranted when there is persistent daytime hypersomnolence. A 50 percent evaluation is to be assigned when the veteran requires the use of a breathing assistance device, such as a continuous airway pressure (CPAP) machine. A 100 percent evaluation is assigned for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or for cases where the veteran requires a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847.

A VA sleep study was conducted in March 2012.  The findings of this study were moderate upper airway resistance disorder.  The provider interpreting the findings states "An auto-titrating CPAP device for home use may be a consideration for symptoms of sleep fragmentation.  Clinical correlation is advised."  

In private treatment records from April 2013, the provider noted that he will wait until he gets the VA sleep study to determine if a CPAP will be needed.  A July 2013 note showed continued use of CPAP is necessary.  A record dated in December 2014 noted that the CPAP was ordered and treatment started in May 2013. The private provider's statement of CPAP being ordered in May 2013 is consistent with the private treatment records prior to and after this month.  

In a June 2016 report of general information, the RO contacted the Veteran who stated that although he acknowledged that was prescribed the CPAP in May 2013, consideration should be given to the severity of his breathing disorder prior to that date because it would have medically required the use of a CPAP.  

Having reviewed all the relevant evidence of record, both lay and medical, the Board finds that prior to May 31, 2013, the Veteran's restrictive airway disease did not meet the criteria for a rating in excess of 30 percent.  Although the Veteran contends that it was severe enough to require a CPAP, the objective treatment records show that as late as April 2013, the provider did not prescribe one.  Therefore, the Veteran did not meet the schedular criteria for a 50 criteria prior to that date.  

From May 31, 2013, the Veteran does not contend nor does the evidence show that he experienced chronic respiratory failure with carbon dioxide retention or cor pulmonale or that he requires a tracheostomy.  Therefore, entitlement to a rating is excess of 50 percent is not warranted.   As the preponderance of the evidence is against the claim for increased ratings in excess of those assigned, the claim for an increased rating must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6847.


ORDER

An increased rating for upper airway resistance disorder in excess of 30 percent prior to May 31, 2013 and in excess of 50 percent thereafter is denied. 
 

REMAND

Remand is necessary to obtain an addendum opinion regarding the severity of the Veteran's eczema.  

In the October 2015 Board remand, the AOJ was directed to obtain a VA examination to assess the severity of the Veteran's skin disorder.  The AOJ was specifically directed to attempt to schedule an examination during a period of a flare-up.  The Veteran was afforded a VA examination in March 2016.  The Veteran reported a history of a rash affecting the backs of both hands, arms, legs, low back, and bilateral flanks.  The Veteran's skin disorder did not cause scarring or disfigurement of the head, face, or neck.  The Veteran treated his skin disorder with topical medication for less than 6 weeks.  At the time of the examination, the Veteran's rash affected none of the total body area or the exposed body area.  The examiner commented that a review of the pictures submitted in November 2014 cannot be confirmed.  He acknowledged that the Board Remand requested an examination during an active rash but noted that it was difficult to coordinate and did not occur at this examination.  The examiner further stated that a November 2012 drawing of the rash from the Veteran's primary care provider's office showed an estimated 20 to 40 percent of the entire area and less than 5 percent of the exposed area was affected.

The Veteran filed a statement in October 2016, in which he stated that he "personal assessment is that the eczema covers more than 40 percent of [his] entire body, especially during recurrent flare-ups."  Along with his statement, the Veteran submitted 53 color photographs of his rash during a self-described flare-up.  Although these photographs were available to the March 2016 VA examiner, the examiner stated that the pictures were in grayscale and a rash could not be identified.  The examiner also stated that the pictures do not sufficiently identify the Veteran. 

The Board finds that the statements by the Veteran and his wife regarding the pictures are sufficient to establish that the photographs are of the Veteran's body.  Currently, the photographs have been associated with the claims file and are in color and show a rash.  Therefore, the Board finds that an addendum opinion by the VA examiner is necessary to review the photographs and the Veteran's statement.  
Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding, relevant treatment records and associate them with the claims file.  All attempts to obtain records should be documented in the claims folder.

2. Return the claims file to the examiner who conducted the October 2015 examination.  If he is unavailable, a suitable replacement must be provided.  

The examiner is requested to review all pertinent records associated with the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. 

The examiner must review the evidence, including the 53 color photographs, and provide an opinion as to the percentage of the total body and exposed areas that are affected by the Veteran's skin disorder.  

The examiner must set forth all examination findings with a complete explanation based on the facts of this case and any relevant medical literature for the comments and opinion expressed.

3. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.

4. The AOJ should review the examination report to ensure that it is in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures.  

5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The appellant 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 of Veterans' Appeals 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 2014).


______________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs