Citation Nr: 20020118 Decision Date: 03/18/20 Archive Date: 03/18/20 DOCKET NO. 13-21 963 DATE: March 18, 2020 ORDER Entitlement to an initial disability rating in excess of 30 percent for sarcoidosis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s sarcoidosis did not result in pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control; cor pulmonale; cardiac involvement with congestive heart failure, right ventricular hypertrophy, or pulmonary hypertension; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment; Forced Expiratory Volume in one second (FEV-1) of 40- to 55-percent predicted; FEV-1 to Forced Vital Capacity (FVC) of 40 to 55 percent; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 40- to 55-percent predicted; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit); episodes of acute respiratory failure; or the requirement of outpatient oxygen therapy. 2. The Veteran’s service-connected disabilities do not preclude her from obtaining and maintaining gainful employment given her background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for sarcoidosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Codes 6600, 6846. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 2008 to February 2012. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 and a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In May 2015, the Board remanded the matters to the Agency of Original Jurisdiction (AOJ) for additional development. The Board notes that the issues on appeal pertain only to the claims for an increased rating for sarcoidosis and entitlement to a TDIU. These matters, as noted above, were previously remanded to the AOJ for development. The Veteran’s claim for higher ratings for headaches and photophobia are not on appeal. The Veteran sought a separate claim for headaches and photophobia as secondary to service-connected sarcoidosis in an August 2013 Report of General Information, confirmed by the Veteran in a June 2014 Report of General Information. Thereafter, in a July 2014 rating decision, the RO denied the Veteran’s claims for headaches and bilateral eye sight. Subsequently, in an October 2019 rating decision, the RO granted service connection for headaches and photophobia on a secondary basis. See 38 C.F.R. § 3.310. The sarcoidosis rating remains under Diagnostic Code 6846 and VA has not rated the sarcoidosis based on residuals. 38 C.F.R. § 4.97. If such had been done, the Veteran would not be allowed to keep his 30 percent rating under Diagnostic Code 6846 as that would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Despite headaches and photophobia being listed in the October 2019 Supplemental Statement of the Case (SSOC), these claims have not been appealed by the Veteran, and thus, the Board does not have jurisdiction to adjudicate the claims for headaches and photophobia. 38 C.F.R. § 20.201. If the Veteran disagrees with the ratings assigned for her headaches and photophobia, she should take action prior to one year after notification of the October 2019 rating decision. For additional information, the Veteran is referred to the appellate rights provided with the October 2019 rating decision and 38 C.F.R. §§ 3.2500(a), 3.2501, 3.2601, 20.201, 20.202, 20.203. 1. Sarcoidosis Rating The Veteran contends that her current symptoms associated with her sarcoidosis is greater than the currently assigned evaluation. See May 2013 Notice of Disagreement, July 2013 Substantive Appeal. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s sarcoidosis is rated under Diagnostic Code 6846. Under Diagnostic Code 6846, sarcoidosis with pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids is rated 30 percent disabling. Sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control is rated 60 percent disabling. Sarcoidosis with cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment, is rated 100 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6846. Alternatively, sarcoidosis may be rated pursuant to Diagnostic Code 6600 under the rating criteria for chronic bronchitis. 38 C.F.R. § 4.97, Diagnostic Code 6846 (“or rate active disease or residuals as chronic bronchitis (Diagnostic Code 6600) and extra-pulmonary involvement under specific body system involved”). Diagnostic Code 6600 provides ratings for chronic bronchitis based in large part on the results of pulmonary function tests (PFTs). FEV-1 of 56- to 70-percent predicted, or; the ratio of FEV-1/FVC of 56 to 70 percent predicted or; DLCO (SB) of 56- to 65-percent predicted, is rated 30 percent disabling. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent predicted, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy is rated 100 percent disabling. 38 C.F.R. § 4.97, Diagnostic Code 6600. In this regard, PFTs are required to rate respiratory conditions except in certain situations, such as when the PFTs are inconsistent with the other clinical evidence of record and the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). Further, post-bronchodilator PFT studies should be used except when the results of pre-bronchodilator tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating a disability based on PFTs, post-bronchodilator results should be used unless such results are poorer than the pre-bronchodilator results, in which case the latter should be applied. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs (FEV-1, FVC, etc.) so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(5). In reviewing the record, an August 2012 VA treatment record noted that the Veteran was diagnosed with sarcoidosis in June 2009 based on a chest computed tomography (CT) scan and bilateral granulomatous iritis. A pulmonary specialist reviewed the results and noted that the Veteran’s complex condition was consistent with sarcoidosis. Due to these findings, the Veteran received steroid infusions that were completed in June 2011, prior to discharge from service. An August 2013 VA treatment note indicate that the Veteran complained of a cough for about a week and was assessed with upper respiratory infection. A lateral chest x-ray conducted in February 2015 revealed results of pulmonary vasculature within normal limits, and also showed that the Veteran’s lungs expanded normally and demonstrated no evidence for airspace opacities, pleural effusion or pneumothorax. An October 2016 VA treatment note indicate that the Veteran had one flare up of inflammation in 2012. During June 2018 VA treatment, the physician reviewed a May 2018 chest x-ray and noted that PFTs demonstrated a mild restrictive defect with a normal DLCO. The physician noted that the restrictive defect was partially due to the Veteran’s obesity. After October 2018 VA treatment, it was noted that the Veteran’s sarcoidosis was in remission. During June 2019 VA treatment, the attending physician further reviewed the May 2018 chest x-ray and noted that the findings are consistent with sarcoidosis. The Veteran denied experiencing dyspnea, weight loss, fever, chills, or night sweats. The physician noted that the Veteran’s sarcoidosis was in stage zero. The Veteran presented for a VA general medical examination in September 2011, at which time she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran denied history of hypertension, hypertensive heart disease, congestive heart failure, angina, dizziness, syncope, fatigue, and dyspnea. Further, she denied history of dyspnea, respiratory failure, cor pulmonale, right ventricular hypertrophy, and pulmonary hypertension. The examiner noted that since the onset of the Veteran’s sarcoidosis, its current status is intermittent with remissions. The Veteran presented for a general VA examination in September 2017, at which time she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported symptoms of headaches at least twice daily with light sensitivity. Overall, the Veteran indicated that her symptoms affect her moderately. It was noted that her condition was in remission when she got out of the military. Upon examination, the examiner noted that the Veteran does not require the use of corticosteroid medications or outpatient oxygen therapy. The examiner noted no physiological impairment, but observed symptoms of blurred vision, headaches, and light sensitivity. PFTs showed the Veteran had FEV-1 of 91 percent predicted and FEV-1/FVC of 97 percent pre-bronchodilators. The examiner noted that FEV-1/FVC results most accurately reflected Veteran’s level of disability. Further, the examiner noted that post-bronchodilator testing was not completed due to pre-bronchodilator results being normal. The examiner also noted that DLCO testing was not completed because it was not indicated for Veteran’s condition. The examiner concluded that the severity of the Veteran’s sarcoidosis is currently mild-moderate with headaches at least twice daily and intermittent blurred vision and light sensitivity. Specifically, the examiner noted that the Veteran has no inflammatory process to include shortness of breath, respiratory distress, wheezing, dyspnea or findings of intrathoracic lymph nodes or granulomatous inflammation noted on x-ray. In sum, the Board finds that the Veteran is not entitled to a rating in excess of 30 percent for her sarcoidosis. The evidence demonstrates that the Veteran’s sarcoidosis does not include pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control to warrant a 60 percent rating. 38 C.F.R. § 4.97, Diagnostic Code 6846. Indeed, the Veteran’s sarcoidosis is noted to be in remission, and the Veteran is not receiving any medication to control her sarcoidosis. Likewise, she does not demonstrate cor pulmonale; cardiac involvement with congestive heart failure, right ventricular hypertrophy, or pulmonary hypertension; or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. Further, the evidence does not show a manifestation of symptoms resulting in PFT findings to the degree required for a higher rating. See 38 C.F.R. § 4.97, Diagnostic Code 6600. Indeed, her results showed FEV-1 of 91 percent predicted, and FEV-1 FVC of 97 percent predicted, and the examiner described these findings as normal. Episodes of acute respiratory failure are not present, and the Veteran does not require outpatient oxygen therapy. For the reasons discussed above, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 30 percent for sarcoidosis. 2. TDIU The Veteran asserts that she is unable to secure and follow a substantially gainful occupation as a result of her service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with her education and occupational experience, by reason of her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran does not meet the schedular requirements for TDIU consideration as a result of her service-connected sarcoidosis, narcolepsy, pes planus, photophobia, septated left ovarian cyst, and headaches, which have a combined disability rating of 40 percent. VA policy reflects that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Thus, if a veteran fails to meet the applicable percentage standards in 38 C.F.R. § 4.16(a), referral to VA’s Director of Compensation Service for extraschedular consideration is warranted where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). Such is not the case here. Military personnel records reflect the Veteran’s military occupation specialty (MOS)/rating was that of food service operation. On her October 2016 and November 2016 application for unemployability she reported sarcoidosis and narcolepsy prevents her from following a substantially gainful occupation. The Veteran reported completing four years of college education, and a one year education or training for cosmetology. She reported she last worked full-time in April 2016 as a supervisor. In her service personnel records, the Veteran reported that prior to service, she worked as a customer service representative, and a supervisor at a coffee shop. The Veteran presented for a VA examination in September 2011 to assess the current severity of her service-connected sarcoidosis, at which time she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported that sarcoidosis affects Veteran’s occupational activities in the form of lack of stamina, weakness, and fatigue. However, there was no effects on the Veteran’s usual daily activities. Notably, the examiner noted that the Veteran’s sarcoidosis is currently asymptomatic. In a March 2013 disability benefits questionnaire, a VA physician reviewed the Veteran’s record and noted that her symptoms for narcolepsy included excessive daytime sleepiness, sleep attacks, and feeling sleepy all the time. The VA physician indicated that the Veteran was taking medication. After assessing the Veteran’s medical record, the VA physician opined that the Veteran’s narcolepsy does not impact her ability to work. The Veteran also presented for a VA examination in September 2017 to assess the current severity of her service-connected sarcoidosis, at which time she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported symptoms as headaches at least twice daily and sensitivity to light. The Veteran also stated that the symptoms affect her moderately. She noted that her sarcoidosis is in remission. The examiner reported that sarcoidosis results in the Veteran having blurred vision, headaches, and light sensitivity. When asked to describe the functional impact the Veteran’s disability has on her ability to work the examiner reported that the impact of sarcoidosis condition impact the Veteran’s ability to work due to daily headaches, blurred vision and light sensitivity. Further, the examiner noted that the effects of sarcoidosis with symptoms of headaches, blurred vision and light sensitivity based on current severity may affect the Veteran mild to moderate in a work related setting. Further, the Veteran presented for a VA examination in September 2017 to assess the current severity of her service-connected narcolepsy, at which time she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported symptoms of problems staying awake. The examiner reported narcolepsy symptoms to include excessive daytime sleepiness, sleep attacks, excessive tiredness, weakness, and lack of concentration and focus. When asked to describe the functional impact the Veteran’s disability has on her ability to work the examiner reported that the condition impacts the Veteran’s ability to work due to decreased concentration, focus, irritation, forgetfulness, lack of energy, excessive sleepiness, tiredness and frustration. Notably, the examiner indicated that the symptoms are currently under control with the use of medication. Further, the examiner noted that the medication allows the Veteran to remain awake, alert with the ability to focus and concentrate in a job-related setting. Although there is currently no cure for narcolepsy, the examiner indicated that the medication allows the Veteran to lead a normal productive life. The Veteran presented for a VA examination in August 2019 for her headaches where she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported symptoms of pain in the nasal and frontal lobe of her head, light sensitivity, and tension. The Veteran reported daily headaches lasting 1½ to 2 hours, triggered by being in the light for too long. When experiencing a headache, the Veteran has difficulty seeing a computer screen and words become blurry. Notably, she indicated working as an emergency dispatcher and has not had to miss work due to headaches. The examiner concluded that the Veteran’s headache does impact her ability to work, but the examiner noted the conclusion is based on Veteran’s subjective history and is not corroborated by the medical records. Lastly, the Veteran also presented for a VA examination in August 2019 for her photophobia where she was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported symptoms of severe light sensitivity. After conducting the examination, the examiner concluded that the Veteran’s photophobia does not impact her ability to work. Taken as a whole, the Veteran’s symptoms do not suggest she has been unable to obtain and maintain employment. The Board acknowledges the Veteran’s physical limitations would make it difficult to work; however, such is contemplated by the currently assigned 30 percent disability rating for sarcoidosis and 10 percent rating for narcolepsy. The Veteran endorsed symptoms of daily headaches, light sensitivity, decreased concentration, focus, irritation, forgetfulness, lack of energy, sleepiness, tiredness and frustration. The Veteran’s sarcoidosis is in remission and has minimal effect on the type of employment for which she has engaged. It could result in a lack of stamina, weakness, and fatigue; however, not to the degree which would affect daily activities. While considering the Veteran’s reports of blurred vision and sensitivity to light, service connected as photophobia, the VA examiner reviewed the record, examined the Veteran’s eyes, and found that such is not shown to cause functional impairment affecting employment. While the Veteran reported headaches, she also indicated that she has not missed work due to headaches. In fact, the Veteran reported that she works as an emergency dispatcher. Relating to narcolepsy, the Veteran currently takes medication that allows her to live a normal life by alleviating her difficulties in staying awake. The Veteran has not alleged that her other service-connected disabilities contribute to unemployability. Her ovarian cyst is not shown to impact her ability to work. Her pes planus causes some decreased mobility, with pain occurring with strenuous activity. See September 2011 VA Examination Report. Such impairment is minimal given the type of work for which the Veteran has engaged. Given that the Veteran attended four year college, has 1 year cosmetology education, and has experience working in customer service and in supervisory roles, the Veteran is qualified through education and experience for a wide variety of positions, many of which would allow the Veteran to work without looking at lights, such as a computer screen, or engaging in strenuous activities. Notably, the Veteran reported working as an emergency dispatcher. While certainly not limited to these positions, the Veteran could work in various customer service positions, in an office setting, or elsewhere, such as a customer service associate, cosmetics associate, or at a call center. These types of work would produce income above the poverty threshold. She is not shown to be precluded from specific functions such as lifting objects, reading, or interacting with others in a work environment due to her service-connected disabilities. The Veteran’s service-connected disabilities do not produce limitations on employment that could not be overcome based on the Veteran’s education and experience. Based on all the evidence, the Board finds that the evidence is against a finding that the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Thus, a TDIU is not warranted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mathew The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.