Citation Nr: 18148644 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 05-33 601 DATE: November 8, 2018 ORDER Entitlement to a 10 percent rating for bilateral pes planus prior to September 17, 2007 is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial rating higher than 60 percent for bronchial asthma with sleep apnea on an extraschedular basis is denied. FINDINGS OF FACT 1. For the period prior to September 17, 2007, the Veteran’s bilateral pes planus was manifested by pain on manipulation and use of the feet and the disability picture more nearly approximated moderate pes planus. 2. The symptoms and severity of the Veteran’s service-connected bronchial asthma and sleep apnea are adequately contemplated by Diagnostic Codes 6602 and 6847. CONCLUSIONS OF LAW 1. For the period prior to September 17, 2007, the criteria for an initial 10 percent rating, and no more, for bilateral pes planus are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276. 2. The criteria for an initial rating greater than 60 percent for bronchial asthma and sleep apnea on an extraschedular basis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.97, Diagnostic Codes 6602 and 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1982 to April 2003. In July 2016, the Board denied entitlement to an initial rating greater than 60 percent for bronchial asthma with sleep apnea on an extraschedular basis; denied an initial compensable rating for bilateral pes planus prior to September 17, 2007; granted a 10 percent rating for bilateral pes planus for the period from September 17, 2007 to January 25, 2008; granted a 20 percent rating for bilateral pes planus for the period since January 25, 2008; and remanded the issue of entitlement to a total disability rating based on individual unemployability. In June 2017, the Board denied entitlement to a total disability rating based on individual unemployability. The Veteran appealed the July 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). By Order dated in April 2018, the Court granted a joint motion for partial remand (joint motion), vacating that part of the Board’s decision that denied entitlement to an extraschedular rating for bronchial asthma and sleep apnea, and an initial compensable rating for bilateral pes planus prior to September 17, 2007. The appeal regarding that part of the Board’s decision that denied a rating greater than 10 percent between September 17, 2007 and January 25, 2008, and a rating greater than 20 percent since January 25, 2008 for bilateral pes planus was dismissed. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Bilateral pes planus prior to September 17, 2007 Pursuant to the joint motion, the parties agreed that the Board erred in failing to provide an adequate statement of reasons and bases as to why a compensable rating for bilateral pes planus was not warranted prior to September 17, 2007, in light of the potential findings of pain on VA examination in October 2002. Specifically, that examination shows the Veteran complained of pain, weakness and stiffness at rest; and pain, swelling, and fatigue with walking or standing. Examination revealed minimal tenderness on palpation of the plantar surface. The Board, however, did not address whether this was sufficient to support a compensable rating. The parties further agreed that the Board should discuss the applicability of 38 C.F.R. §§ 4.59, 4.21, and 4.7. A noncompensable rating is assigned for mild pes planus, with symptoms relieved by built-up shoe or arch support; and a 10 percent rating is assigned for moderate (bilateral or unilateral) pes planus, with weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet. 38 C.F.R. § 4.71a, Diagnostic Code 5276. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Section 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. 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. On VA examination in October 2002, the Veteran reported pain, weakness, and stiffness at rest, and pain, swelling, and fatigue with walking or standing. He used orthotics. On physical examination, the Veteran had pes planus. The degree of valgus of the foot was zero. Forefoot and midfoot alignment was normal and examination of the Achilles’ tendon revealed good alignment. Palpation of the plantar surface revealed minimal tenderness. There were no limitations in standing or walking. The Veteran is competent to report that he experiences foot pain on use (i.e., walking or standing). Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a lay person is competent to report on that of which he or she has personal knowledge). While he had orthotics, there is no definitive evidence that they relieved the appellant’s symptoms. Objectively, the examination showed tenderness on palpation. Taken together, this arguably tends to show pain on manipulation and use of the feet. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the disability picture prior to September 17, 2007 more nearly approximated moderate pes planus and an initial compensable rating is warranted. 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5276. Given the absence of any objective evidence of severe pes planus on examination a higher rating is not warranted for the period prior to September 17, 2007. An extraschedular rating for bronchial asthma with sleep apnea In November 2010, the Board denied entitlement to an initial rating greater than 60 percent for bronchial asthma and sleep apnea on a schedular basis under Diagnostic Code 6602 as the predominant disability. This decision is final. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. In July 2016, the Board denied entitlement to an initial rating greater than 60 percent for bronchial asthma and sleep apnea on an extraschedular basis. Pursuant to the joint motion, the parties agreed that the Board erred by failing to provide an adequate statement of reasons or bases fully addressing whether the Veteran’s symptomatology was contemplated by the relevant rating criteria and failed to address material evidence related to the claims. The parties further agreed that the Board’s decision did not indicate whether its determination was based on a de novo review of the evidence. Kuppamala v. McDonald, 27 Vet. App. 447, 455-56 (2015). The joint motion indicated that because the claims were pending before the Court on January 8, 2018, the Board must apply the new rule pertaining to extraschedular consideration. Under the current version of 38 C.F.R. § 3.321(b)(1), ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegatee that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 82 Fed. Reg. 57835 (Dec. 8, 2017). There is a three-step analysis for determining whether an extraschedular evaluation is appropriate for a service connected disability. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran’s disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant’s exceptional disability picture exhibits other related factors identified in the regulations as “governing norms.” Id.; see also 38 C.F.R. § 3.321(b)(1). If the factors of step two are found to exist, the third step is to refer the case for a determination whether, to accord justice, the claimant’s disability picture requires the assignment of an extraschedular rating. Id. In addressing step one, the Board must determine whether the disability picture is adequately contemplated by the rating schedule. This necessitates a discussion as to the applicable rating criteria. Bronchial asthma is evaluated as follows: a 10 percent evaluation is assigned when pulmonary function testing (PFT) shows forced expiratory volume at one second (FEV-1) is 71-80 percent of the predicted amount, or; FEV-1/forced vital capacity (FVC) is 71-80 percent, or; intermittent inhalational or oral bronchodilator therapy is used. A 30 percent rating is warranted where FEV-1 is 56 to 70 percent predicted, or; FEV-1/FVC is 56 to 70 percent, or; there is daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent rating is warranted where FEV-1 is 40 to 55 percent predicted, or; FEV-1/FVC is 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent disability rating is warranted where FEV-1 is less than 40 percent predicted, or; FEV-1/FVC is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; where the use of systemic high dose corticosteroids or immunosuppressive medications are required on a daily basis. 38 C.F.R. § 4.97, Diagnostic Code 6602. Sleep apnea is evaluated as follows: asymptomatic but with documented sleep disorder breathing (noncompensable); persistent daytime hypersomnolence (30 percent); requires use of breathing assistance device such as continuous airway pressure (CPAP) machine (50 percent); and chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. The rating schedule contains special provisions regarding evaluation of respiratory conditions. 38 C.F.R. § 4.96. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. at (a). See also 38 C.F.R. § 4.14 (the evaluation of the same disability or manifestation under different diagnoses is to be avoided); Urban v. Shulkin, 29 Vet. App. 82 (2017). Pursuant to a November 2010 remand, in October 2012, the RO submitted a request for extraschedular consideration to the Director, Compensation Service. In November 2012, the Director, Compensation Service, found that the Veteran remained employed on a full-time basis and had not been hospitalized for any significant period of time for either sleep apnea or asthma. The Director determined that the totality of the evidence did not support the contention that the Veteran’s service-connected bronchial asthma with sleep apnea was so exceptional or unusual, as to render the use of the regular rating schedule standards impractical. Hence, the Director found no basis to entitlement to an extraschedular evaluation. The joint motion notes that the Board appeared to rely primarily on the Director’s November 2012 determination despite apparent inconsistencies in the record. For example, the Director characterized the Veteran’s sleep apnea as mild although there is medical evidence describing it as severe. Further, the Director found that the Veteran’s service-connected narcolepsy had a severe effect on functioning, even though the actual record indicates he “ha[d] narcolepsy which leads to persistent daytime hypersomnolence because of the comorbidities of sleep apnea and narcolepsy.” See September 12, 2007 statement from Dr. D.O. The Board may assign an extraschedular rating when appropriate, but it is precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Director’s extraschedular decision is one of fact, and is reviewable by the Board on a de novo basis. The Director’s decision may serve to inform the Board’s review, but it is not evidence. Id. at 456-58. In addressing the concerns of the joint motion, the Board makes clear that it is considering the claim de novo. Kuppamala. While the Board is focusing in addressing the deficiencies identified in the joint motion, it has reviewed the complete evidence of record, to include VA examinations addressing the severity of his disorders, as well as VA and private treatment records documenting extensive and continued treatment for asthma and sleep apnea. This evidence, along with various lay statements, indicates that the Veteran’s respiratory conditions are significant and affect his overall functioning. Most recently, the Veteran underwent a VA social and industrial survey in February 2017. He reported complex sleep apnea which affects his functional level at times due to insomnia at night. He is tired and it takes him awhile to adjust and get going the next morning. The Veteran’s spouse indicated there are nights when he was unable to sleep and was fatigued. She also assisted him with his nebulizer, inhalers, and other medications. The social worker concluded that the Veteran’s conditions do affect his work and social lifestyle, but with accommodations he should be able to continue to work a flexible schedule. In reviewing the November 2012 finding of the Director, Compensation Service, the Board agrees that it appears to ignore potentially favorable evidence. For example, a December 2003 letter from a VA physician to the Veteran’s employer indicates he has severe sleep apnea and that current therapy is ineffective. Medical evidence shows that the Veteran has a complicated sleep disorder with both obstructive and central sleep apneas and its severity has been described as mild, moderate to severe, and severe. A May 2005 letter from a VA staff physician indicates the Veteran would not be able to expect full resolution of his sleep apnea unless they performed a tracheostomy (which does not induce centrals and is guaranteed to treat all obstructives). Until then, he was to increase his medication with good hope to improve sleep. On review of the overall evidence, the Board does not consider the Director’s finding dispositive. In further addressing step 1 of Thun, the Board acknowledges the joint motion wherein the parties agreed that it must address the recent changes to 38 C.F.R. § 3.321(b)(1). See 82 Fed. Reg. 57830 (Dec. 8, 2017). The rule, as set forth above, clarifies that extraschedular evaluation is only to be applied to a single service-connected disability and may not be based on the combined effect of more than one disability. The joint motion specifically states that the Board should consider the application of 38 C.F.R. § 3.321(b)(1) with respect to all of the symptoms of the Veteran’s bronchial asthma and sleep apnea. The amendment to 38 C.F.R. § 3.321 was to clarify VA’s longstanding interpretation that the regulation provides an extraschedular evaluation for a single service-connected disability, and not for the combined effect of two or more service-connected disabilities as set forth in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). 82 Fed. Reg. 57830. In the June 2017 Appellant’s Brief, the attorney indicated the Veteran’s bronchial asthma was manifested by weekly flare-ups, frequent medical visits, and the need for multiple medications. On review, Diagnostic Code 6602 specifically contemplates pulmonary function, the frequency of medical care, and the types of medication required to treat bronchial asthma. Concerning sleep apnea, the attorney noted that the Veteran had both obstructive and central sleep apnea, severe sleep fragmentation, daytime somnolence, inability to concentrate due to tiredness, he needed a CPAP or BiPAP (neither of which fully resolved his symptoms), and that he could not get full resolution of his symptoms without a tracheostomy. Review of Diagnostic Code 6847 shows that it considers the effects of obstructive, central, and mixed sleep apnea syndromes, to include persistent hypersomnolence and the need for CPAP or other breathing assistance device. Additionally, the criteria specifically address whether the disorder is so severe that it causes chronic respiratory failure, cor pulmonale, or requires a tracheostomy. The Board acknowledges that sleep fragmentation and inability to concentrate are not specifically listed in the applicable diagnostic code; however, they appear to be reflected in the rating criteria. That is, sleep disordered breathing arguably includes sleep fragmentation, and the inability to concentrate is arguably a manifestation of persistent daytime hypersomnolence (excessive daytime sleepiness). The rating criteria clearly considers the resultant effects of sleep apnea. As to both disorders, the evidence shows that due to his symptoms the Veteran had increased absenteeism, took an extended medical leave, and was ultimately given a flexible schedule as a reasonable accommodation. The Veteran also reported loss of promotion potential. The percentage ratings represent the average impairment in earning capacity and thus, the Board find that occupational impairment is contemplated in the rating schedule. See 38 C.F.R. § 4.1. The Board further notes that extraschedular consideration cannot be used to undo the approximate nature that results from the rating system based on average impairment of earning capacity authorized by Congress. Thun v. Peake, 22 Vet. App. 111, 116 (2008). On review, the symptomatology and impairments caused by the Veteran’s bronchial asthma and sleep apnea throughout the rating period on appeal are specifically contemplated by the criteria contained in Diagnostic Codes 6602 and 6847. The evidence overall simply does not show that the Veteran’s bronchial asthma or sleep apnea affect his employment or overall functioning in ways not contemplated by the applicable diagnostic codes. Having determined that the severity and symptomatology of the Veteran’s bronchial asthma and sleep apnea are adequately contemplated by the rating schedule, the Board does not find it necessary to address the second step of Thun. In considering the claim, the Board acknowledges the argument that the rating criteria under Diagnostic Code 6602 does not reflect the sleep apnea symptoms and therefore, it is inadequate. While this argument may apply to the schedular rating currently assigned, and the Veteran’s disagreement with 38 C.F.R. § 4.96(a) which precludes separate ratings for certain coexisting respiratory conditions, the Board does not find it persuasive in the extraschedular context. As discussed, considering each disability separately and the applicable diagnostic codes (6602 and 6847), the rating criteria clearly reflect the severity and symptoms described herein. The Board further notes that the proposed rule to the recent changes to 38 C.F.R. § 3.321(b)(1) specifically states that “in cases where Congress or VA has determined that special rating consideration is warranted based on the combined effects of multiple disabilities, they have expressly specified the manner of considering these combined effects.” 81 Fed. Reg. 23230-31 (April 20, 2016).   The preponderance of the evidence is against the claim and entitlement to an extraschedular rating is denied. The doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Carsten, Counsel