Citation Nr: 1806019 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 13-07 472 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a rating in excess of 30 percent for sarcoidosis. 2. Entitlement to a disability rating in excess of 10 percent for conjunctivitis. 3. Entitlement to a compensable disability rating for residuals of hernia repair. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from August 1961 to July 1963. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for residuals of a hernia repair with an assigned 0 percent disability rating effective April 3, 2009, and denied increased ratings for sarcoidosis and conjunctivitis. In regarding to the appropriate rating for sarcoidosis, the Board notes that the issue was perfected as greater than 30 percent rating for this disability, rated under Diagnostic Code 6846. Currently, service connection is also in effect for additional disabilities as secondary to the service-connected disability, and additional disabilities have been denied service connection and are not currently in appellate status. Separate ratings are in effect for laryngitis, an arrhythmia and residuals of a hernia. The denied claims include claims for service connection for skin lesions and cataracts. In this regard, an August 2016 statement of the case was issued but the Veteran did not perfect these claims. Diagnostic Code 6846 has an instruction after the rating criteria that the disability of sarcoidosis may also be rated as chronic bronchitis (DC 6600) and extra-pulmonary involvement under the specific body system involved. Considering the procedural history of this appeal, however, the Board's decision is limited to consideration of the pulmonary involvement of this disability and does not consider as in appellate status separate disabilities, some that are currently service connected and others which has not yet been service connected. As discussed below, considering the pulmonary involvement, as of March 12, 2015, an increased rating of 60 percent is warranted under DC 6600. FINDINGS OF FACT 1. Prior to March 12, 2015, the Veteran's sarcoidosis required constant or near-constant use of low-dose systemic therapy/corticosteroids to control symptoms, namely breathing issues. 2. The Veteran's sarcoidosis, as pulmonary involvement, has not required use of high dose corticosteroids and has not resulted in cor pulmonale, congestive heart failure, or progressive pulmonary disease. 3. As of March 12, 2015, the Veteran has respiratory functioning warranting a higher rating under rating criteria specific to pulmonary function tests. 4. The Veteran's conjunctivitis is not active; evidence shows that decreased visual acuity is the result of nonservice-connected cataracts, and manifested by no worse than corrected distance visual acuity of 20/40 in both eyes. 5. The Veteran's residuals of a hernia repair has not been manifested by a small postoperative ventral hernia, not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt. CONCLUSIONS OF LAW 1. For the period prior to March 12, 2015, the criteria for a rating in excess of 30 percent for sarcoidosis with respiratory involvement have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, 4.97, Diagnostic Codes 6600, 6846 (2017). 2. For the period beginning March 12, 2015, the criteria for a 60 percent rating for sarcoidosis with respiratory involvement have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.118, 4.97, Diagnostic Codes 6600, 6846, (2017). 3. The criteria for a rating in excess of 10 percent for conjunctivitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.79, Diagnostic Code 6018 (2017). 4. The criteria for a compensable rating for the residuals of a hernia repair have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7339 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). Here, the Veteran has not raised any issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As such, the Board finds that VA has satisfied its duties under governing laws and regulations, and may now review the merits of the Veteran's claims. Merits of the Increased Ratings Claims The Veteran seeks disability ratings higher than 30 percent for service-connected sarcoidosis, higher than 10 percent for conjunctivitis, and higher than 0 percent for residuals of a hernia repair. 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The ratings considered by the Board in this decision involve both issues on initial higher ratings and appeals stemming from claims for increase of previously service-connected disabilities. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In increased-rating claims, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate rating may still be assigned for separate periods of time based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Sarcoidosis 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. An instruction after 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. Treatment records dated 2008 to 2016 indicate that throughout the appeal, the Veteran has been maintained on at most .25 mg of Flunisolide and .0045 mg of Budesonide daily for breathing issues. A January 2016 VA examination report notes that the Veteran's respiratory corticosteroid medication is a low dose. There is no evidence of systemic high dose (therapeutic) corticosteroids during the period of the claim. Notably, although the record reveals that once in April 2009, the Veteran was intravenously treated with 125 mg of Methylprednisolone for difficulty breathing, he was discharged home that same day and did not receive any subsequent high doses of corticosteroids. There is also no evidence of cor pulmonale, 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. As noted in the Introduction, the Board has considered whether a higher rating is warranted if the sarcoidosis is rated as chronic bronchitis (Diagnostic Code 6600). The record reveals pulmonary function test results of FEV1/FVC 56 percent in March 2015. A January 2016 VA examination report reveals pulmonary function test results of FEV-1 46 percent predicted and FEV-1/FVC 54 percent (pre-bronchodilator); FEV-1 49 percent predicted and FEV-1/FVC 56 percent predicted (post-bronchodilator); and DCLO (diffusing capacity of the lung for carbon monoxide) 82 percent predicted. The January 2016 examiner noted that the DLCO test result most accurately reflects the Veteran's level of disability without explanation. Also without explanation, he noted that the Veteran's weight, asthma, chronic bronchitis and history of tuberculosis were predominately responsible for the limitation in pulmonary function. The January 2016 VA examiner also reported "some fullness in the right perihilar region with a band of apparent scarring seen in the left perihilar region with linear extensions to the left lateral chest wall." He also noted "additional scattered areas of scarring and relative hyperlucency within the upper lungs." The overall evidence indicates that a 60 percent rating would be warranted under Diagnostic Code 6600 as of March 12, 2015, the first date on which FEV-1/FVC is shown to be between 40 and 55 percent. Although the January 2016 VA examiner noted that the DLCO results more accurately reflect the Veteran's disability, he did not provide an explanation as to why these results were more accurate than the FEV-1 and FEV-1/FVC results. As the January 2016 FEV-1/FVC results of 56 percent are close to the March 2015 FEV-1/FVC results of 54 percent, the Board finds the FEV-1/FVC results are adequate to use for rating purposes and finds that a 60 percent rating warranted. Considering the medical and lay evidence of record, the Board does not find a basis for a higher rating under DC 6600 as the PFTs of record do not indicate that the service-connected disability results in this level of disability. Conjunctivitis Under Diagnostic Code 6018, a 10 percent rating is assigned for active conjunctivitis with objective findings, such as red, thick conjunctivae, mucous secretion. Inactive conjunctivitis is rated on the basis of residuals, such as visual impairment and disfigurement (Diagnostic Code 7800). 38 C.F.R. § 4.79, Diagnostic Code 6018. With respect to visual impairment, a 10 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 20/100 in one eye and 20/40 in the other eye; (2) corrected visual acuity is 20/70 in one eye and 20/40 in the other eye; (3) corrected visual acuity is 20/50 in one eye and 20/40 in the other eye; (4) or corrected visual acuity is 20/50 in both eyes. 38 C.F.R. § 4.79, Diagnostic Code 6066 (2017). A 20 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 15/200 in one eye and 20/40 in the other eye; (2) corrected visual acuity is 20/200 in one eye and 20/40 in the other eye; (3) corrected visual acuity is 20/100 in one eye and 20/50 in the other eye; or (4) corrected visual acuity is 20/70 in one eye and 20/50 in the other eye. Id. A 30 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 20/70 in both eyes; (2) corrected visual acuity is 20/100 in one eye and 20/70 in the other eye; (3) corrected visual acuity is 20/200 in one eye and 20/50 in the other eye; (4) corrected visual acuity is 15/200 in one eye and 20/50 in the other eye; or (5) corrected visual acuity is 10/200 in one eye and 20/40 in the other eye. Id. A 40 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 20/200 in one eye and 20/70 in the other eye; (2) corrected visual acuity is 15/200 in one eye and 20/70 in the other eye; or (3) corrected visual acuity is 10/200 in one eye and 20/50 in the other eye. Id. A 50 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 20/100 in both eyes; or (2) corrected visual acuity is 10/200 in one eye and 20/70 in the other eye. Id. A 60 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 20/200 in one eye and 20/100 in the other eye; (2) corrected visual acuity is 15/200 in one eye and 20/100 in the other eye; or (3) corrected visual acuity is 10/200 in one eye and 20/100 in the other eye. Id. A 70 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 20/200 in both eyes; (2) corrected visual acuity is 15/200 in one eye and 20/200 in the other eye; or (3) corrected visual acuity is 10/200 in one eye and 20/200 in the other eye. Id. An 80 percent disability rating is warranted for impairment of central visual acuity in the following situations: (1) corrected visual acuity is 15/200 in both eyes; or (2) corrected visual acuity is 10/200 in one eye and is 15/200 in the other eye. Id. A 90 percent disability rating is warranted for impairment of central visual acuity when corrected visual acuity is 10/200 in both eyes. Id. Visual acuity will be evaluated on the basis of corrected distance vision. 38 C.F.R. § 4.76(b) (2017). As for visual field impairment, 30 percent disability ratings are warranted for homonymous hemianopia, bilateral loss of temporal half of visual field, and for bilateral loss of inferior half of visual field. 38 C.F.R. § 4.79, Diagnostic Code 6080. Facial disfigurement is evaluated under Diagnostic Code 7800. Diagnostic Code 7800 provides that a 30 percent disability rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; for two or three characteristics of disfigurement. 38 C.F.R. § 4.118, Diagnostic Code 7800. VA treatment records show that the Veteran complained of dry eyes and decrease in vision. A December 2009 VA treatment record indicates that the Veteran had refractive error, cataract, and no ocular involvement with his sarcoid. A September 2009 VA examination report shows that the Veteran complained of blurred vision and some increased visual difficulties at night. Upon physical examination, the VA examiner noted that the Veteran had an uncorrected distance visual acuity in the right eye of 20/40, corrected to 20/20; uncorrected near visual acuity in the right eye of J4, corrected to J1; uncorrected distance visual acuity in the left eye of 20/100, corrected to 20/20; and uncorrected near visual acuity in the left eye of Jl, corrected to J1. The pupils and extraocular motility were normal. There was no evidence of any sarcoid ever having involved the ocular structures. The VA examiner determined that the Veteran had cataracts and opined that they were related to age and not to service-connected sarcoidosis. He further determined that there was no evidence in the conjunctiva of sarcoid or any evidence of prior ocular sarcoid. A January 2016 VA examination report shows that the Veteran has an uncorrected distance visual acuity in the right eye of 20/40 or better, corrected to 20/40 or better; uncorrected near visual acuity in the right eye of 20/40 or better, corrected to 20/40 or better; uncorrected distance visual acuity in the left eye of 20/50, corrected to 20/40 or better; and uncorrected near visual acuity in the left eye of 20/40 or better, corrected to 20/40 or better. There was no anatomical loss, light perception only, extremely poor vision or blindness of either eye reported. Eyelids/eyelashes, conjunctiva, cornea, anterior chamber, iris, and lens of the right and left eye were all normal. There was no scarring or disfigurement attributable to any eye condition. Applying the facts in this case to the criteria set forth above, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for conjunctivitis. At the outset, the Board notes that a 10 percent rating is the maximum rating under Diagnostic Code 6018. Thus, the Board has considered whether higher ratings are warranted based on visual impairment or disfigurement. The evidence shows that the Veteran's impaired vision is due to nonservice-connected cataracts, which are not related to service-connected sarcoidosis. Moreover, at worst, the Veteran's corrected distance visual acuity is 20/40 or better in both eyes. These findings warrant a 0 percent rating; therefore, a rating in excess of 10 percent based on impairment of central visual acuity is not warranted. 38 C.F.R. § 4.79, Diagnostic Code 6066. The Board also considered whether a higher rating is warranted based on impairment of visual fields. However, there was no finding of homonymous hemianopia, bilateral loss of temporal half of visual field, or for bilateral loss of inferior half of visual field. As such, a higher rating is not warranted for impairment of visual fields. 38 C.F.R. § 4.79, Diagnostic Code 6080. Additionally, there is no evidence of disfigurement or scarring of the eyes. Therefore a rating in excess of 10 percent under Diagnostic Code 7800 is also not warranted. 38 C.F.R. § 4.118. The Board has considered whether a higher rating is available under any other potentially applicable provision of the rating schedule. However, the Board finds that a higher rating is not warranted for service-connected conjunctivitis based on any other provision of the rating schedule at any time throughout the period of appeal. The preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's service-connected conjunctivitis. Therefore, the benefit-of-the-doubt doctrine is not for application, and the claim is denied. See 38 U.S.C. § 5107(b). Residuals of Hernia Repair The Veteran's disability of residuals of a hernia repair has been assigned a 0 percent (noncompensable) rating under Diagnostic Code 7339 for a postoperative ventral hernia. 38 C.F.R. § 4.114 (2017). Diagnostic Code 7339 provides a 0 percent rating for a postoperative ventral hernia with healed wounds, no disability, belt not indicated; a 20 percent rating for a small, postoperative ventral hernia, not well supported by a belt under ordinary conditions, or a healed ventral hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt; a 40 percent rating for a large, postoperative ventral hernia, not well supported by belt under ordinary conditions; and a 100 percent rating for a massive, persistent, postoperative ventral hernia, with severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. A May 2010 VA examination report shows that the Veteran has a surgical scar just superior to the umbilicus that is 4 inches in length by 1/4 inch in width. The examiner noted that the scar is linear, superficial, not tender and not affixed to underlying tissues. No chronic skin changes are associated with the scar. It is hyper-pigmented. The scar has no abnormal effect upon abdominal wall movement. There is no evidence of recurrent ventral hernia. On deeper palpation within the subcutaneous tissues, there was pain with folding of the anterior abdominal wall by digital examination. There was no evidence of any asymmetry to the abdominal wall or any weakening of the abdominal wall muscles. VA treatment records do not show evidence of ongoing treatment of any hernia or residuals of a hernia. The Veteran's postoperative ventral hernia is a healed wound, no disability, belt not indicated. This falls squarely within the rating criteria for a noncompensable rating under Diagnostic Code 7339. With no symptoms or residual disability other than pain observed on the May 2010 VA examination, the Board finds that the Veteran's disability of residuals of postoperative ventral hernia has not been manifested by a small postoperative ventral hernia not well supported by a belt under ordinary conditions, or a healed postoperative ventral hernia or postoperative wounds with weakening of the abdominal wall and indication for a supporting belt. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a compensable rating. While the record shows that the Veteran has a surgical scar associated with the hernia repair, the finding of a linear, superficial, and not tender scar that is 4 inches in length by 1/4 inch in width during the May 2010 VA examination, does not support a compensable rating under the rating criteria for scars. The preponderance of the evidence is against a rating in excess of 0 percent for the Veteran's service-connected residuals of a hernia repair. The benefit-of-the-doubt doctrine is therefore not for application, and the claim is denied. See 38 U.S.C. § 5107(b). ORDER A rating is excess of 30 percent for sarcoidosis with respiratory impairment prior to March 12, 2015 is denied. A separate 60 percent rating for sarcoidosis with respiratory impairment, effective March 12, 2015, is granted subject to the criteria applicable to the payment of monetary benefits. A rating in excess of 10 percent for conjunctivitis is denied. A compensable rating for residuals of hernia repair is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs