Citation Nr: 18141418 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 11-17 355 DATE: October 10, 2018 ORDER Entitlement to a 100 percent rating for service-connected Cushing's syndrome, effective August 27, 2007, is granted. FINDING OF FACT Since August 27, 2007, the Veteran’s Cushing’s Syndrome has been manifested by symptoms including osteoporosis, weakness, loss of muscle strength, hematuria, striae, obesity, and adrenal insufficiency. CONCLUSION OF LAW The criteria for a rating of 100 percent for service-connected Cushing's syndrome have been more nearly approximated for the entire period covered by this claim. 38 U.S.C. § 1155, 5170; 38 C.F.R. § 3.102, 3.951, 4.1, 4.7, 4.21, 4.119, Diagnostic Code (DC) 7907. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to August 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In his June 2011 VA Form 9 (Appeal to the Board of Veteran’s Appeals), the Veteran requested a hearing before a Veterans Law Judge to be held at the RO. In February 2013 he submitted a withdrawal of that request. To date he has not renewed his request for a hearing. 1. Entitlement to a rating in excess of 40 percent prior to January 13, 2016, and in excess of 60 percent thereafter, for the service-connected Cushing's syndrome. The Veteran filed a claim for an increased rating for Cushing’s syndrome on August 27, 2007. At that time, he was in receipt of a 40 percent rating for that disability. In March 2016, during the pendency of this appeal, a rating decision was issued which granted a 60 percent rating, effective January 13, 2016. As this does not constitute a total grant of the benefit available, the entire period since August 27, 2007 remains on appeal and for consideration by the Board. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. “Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, “[w]here 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. Cushing’s syndrome is rated under Diagnostic Code 7907. Under the diagnostic criteria, a 30 percent rating is assigned for Cushing’s syndrome with striae, obesity, moon face, glucose intolerance, and vascular fragility. 38 C.F.R. § 4.119, Diagnostic Code (DC) 7907. A 60 percent rating is assigned when medical evidence shows loss of muscle strength, and enlargement of the pituitary or adrenal gland. Id. A 100 percent rating is assigned when the evidence shows Cushing’s syndrome as an active, progressive disease, with symptoms including loss of muscle strength, areas of osteoporosis, hypertension, weakness, and enlargement of the pituitary or adrenal gland. Id. After careful consideration, the Board finds that a 100 percent rating should be assigned from the date of the claim for an increased rating. In June 2008, a VA examiner diagnosed osteoporosis and opined that it is at least as likely as not due to the Veteran’s corticosteroid therapy, the cause of his Cushing’s syndrome. Also noted at that time was hematuria and tender testicles, slightly decreased in size. The examiner could not provide an opinion on the cause of his hematuria without resort to speculation. In September 2008, a VA examiner diagnosed adrenal insufficiency and striae, both secondary to steroid use. Also diagnosed was scoliosis of the thoracic spine and history of osteoporosis with documentation of osteoporosis noted from 2004 studies. Also noted in private treatment records available at that time was hematuria after ejaculation and steroid induced adrenal insufficiency. At that point in time, the RO issued the rating decision on appeal, in January 2009, noting that the Veteran’s 40 percent rating, which had been assigned since the date of service connection in December 1992, was protected, as it was over 20 years old (the Board notes that a 40 percent rating is not available for Cushing’s syndrome). 38 C.F.R. § 3.951. The RO declined to grant a higher rating. Nonetheless, it reclassified the disability on appeal from “drug induces Cushing’s syndrome” to “steroid induced Cushing’s syndrome with osteoporosis and adrenal insufficiency with gross hematuria.” The Veteran appealed that decision. The Veteran has submitted a private medical opinion dated October 13, 2011, which explained that, despite being diagnosed with adrenal insufficiency secondary to his Cushing’s syndrome, he was not likely to have adrenal enlargement because the Cushing’s syndrome is iatrogenic in nature, not idiopathic. Nonetheless, he does have adrenal insufficiency and the physician indicated that, “His osteoporosis is definitely 100% associated with his iatrogenic Cushing’s syndrome since someone his age would not have osteoporosis without that or some other precipitating cause.” The doctor opined that the Veteran’s Cushing’s syndrome was progressive in nature, documenting the development of more serious symptoms over time. In January 2016, during the pendency of the appeal, he was afforded a new VA examination. At that time, osteoporosis was again diagnosed, as was steroid induced adrenal insufficiency. Other symptoms attributed to the Veteran’s Cushing’s syndrome included striae, obesity, loss of muscle strength, and weakness. Adrenal cortical hypofunction (Addison’s disease) was also attributed to the disability. Considering the January 2016 examination report, a new rating decision was issued in March 2016 which granted an increased rating of 60 percent, effective January 13, 2016, the date that loss of muscle strength was found. An addendum opinion, dated in March 2017 noted that the Veteran did not have evidence of hypertension or enlarged adrenal glands. The addendum opinion explained that when Cushing’s syndrome is due to exogenous intake of steroids (as in the present case), the result is that the adrenal and pituitary glands will not enlarge, and the adrenal glands will more likely atrophy (shrink) as the steroids normally produced by the gland are coming from an outside source, thus the Veteran’s documented adrenal insufficiency which is caused by the Veteran’s Cushing’s syndrome. After careful consideration, the Board finds that a 100 percent rating should be assigned for the entire period in question. Although the Veteran does not have all of the symptoms identified in the diagnostic criteria for a 100 percent rating, the overall disability picture more nearly approximates the criteria for the 100 percent rating, particularly given the finding that the Veteran’s disability has progressively worsened over time, and will continue to do so. Additionally, the Veteran does have a significant number of symptoms, to include progressive osteoporosis, loss of muscle strength, obesity, striae, and weakness. To the extent that he does not have adrenal or pituitary enlargement, the March 2017 and October 2011 opinions explained that such a symptom is not likely to develop due to the iatrogenic, not idiopathic nature of his Cushing’s syndrome. Nonetheless, he does have adrenal insufficiency which is clearly attributed to his disability. Where, as here, there is a question as to which evaluation should be assigned, “the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.” 38 C.F.R. § 4.7. In this case, the RO has conceded osteoporosis and adrenal insufficiency since the date of the Veteran’s claim for an increased rating. Considering that osteoporosis is progressive in nature, and it is specifically listed as a symptom of an active progressive disease in the diagnostic rating criteria, and the Veteran has symptoms more than those which would give rise to a 60 percent rating, the Board will afford the Veteran the benefit of the doubt and assign a 100 percent rating since the date of claim for an increase, August 27, 2007. L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel